Keyes v. Minneapolis & St. Louis Ry. Co.
| Decision Date | 22 December 1886 |
| Citation | 36 Minn. 290 |
| Parties | ANSON L. KEYES <I>vs.</I> MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY. |
| Court | Minnesota Supreme Court |
Baxter, Townley & Gale, for appellant.
A. D. Keyes, for respondent.
This was an action to recover damages for injuries sustained by plaintiff in his person and property, and caused by an obstruction (a barbed-wire fence) which it is alleged defendant unlawfully and negligently placed across a public road, and with which plaintiff collided while lawfully driving along such highway. It will be observed that the gist of plaintiff's cause of action against defendant is not mere negligence, — that is, negligently doing an otherwise lawful act, — but the doing of an act which it had no right to do at all, — viz., obstructing a public highway. This eliminates from the consideration of the case many of the questions sought to be raised by the assignments of error; for, if defendant unlawfully placed an obstruction upon a highway, and plaintiff, while travelling upon it, and in the exercise of ordinary care, collided with this obstruction, and was thereby damaged, clearly the defendant would be liable.
Defendant makes the point that there is no evidence that the building of this fence was the act of the railway company. We think this was admitted by the pleadings. The complaint alleges expressly that it was built by the defendant. The answer admits that it was built by defendant's "section foreman," and contains no allegation or suggestion that he had not authority, as its agent, to do so. On the contrary, the answer was evidently framed with the idea of admitting the building of the fence by defendant's agent, but justifying the act upon the ground that the highway had been vacated by the board of town supervisors, and another one laid out elsewhere as a substitute for it. The record shows that the case was tried throughout by both parties, and submitted by the court to the jury, upon this theory, and without any question being made or raised as to the act of the section foreman not being the act of the railway company; and, if there was any doubt as to the construction of the answer, this consideration must solve the doubt against the defendant. Neither do we think it would be any great stretch for a court to take judicial notice of the fact, known, we apprehend, to every one acquainted with the management and operation of railways, that the business of inspecting and keeping in repair the fences along the railway is within the usual and ordinary duties of the section foreman. See Brown v. Minn. & St. Louis Ry. Co., 31 Minn. 553, (18 N. W. Rep. 834.)
It was conceded that the locus in quo had been, up to within a very short time of this accident, and for 20 years preceding, a public highway, travelled and used as such, and was still a public highway unless vacated by the supervisors of the town. Under the statute this could only be done by an order signed by them. Gen. St. 1878, c. 13, § 37. It would be immaterial what proceedings might have been had with reference to vacating this highway, or even what conclusion the supervisors personally might have arrived at in their own minds, unless they had made an order. It is this order which is the efficient thing in either laying out or vacating a highway, and until such order is made no road is laid out or vacated, and there can be no order until it is signed by the supervisors. Without their signature the document is no more than blank paper. The order must be complete and sufficient on its face, and its defects cannot be helped out or supplied by parol.
In the case at bar the evidence shows conclusively that the supervisors never in fact signed any order. A mere reference by them, by way of recital in the award of damages, to another paper, which they never signed, as a "supervisors' order made by us," is not enough. It follows that, this highway not having been vacated, the act of defendant in building this fence was an unlawful obstruction.
We do not think that there was any evidence of contributory negligence on part of plaintiff to go to the jury; but, even if there was, the verdict is conclusive on that question. That this obstruction in the highway caused the injury complained of is undisputed. It follows that plaintiff was entitled to a verdict.
2. It appeared from the evidence that, at the time the accident occurred, the plaintiff, with his wife and daughter, was driving along this highway after dark, when his horses suddenly came in contact with this fence. When a witness in his own behalf, plaintiff was permitted, without objection, to describe with minuteness the whole occurrence, — the horses suddenly halting, his...
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