Klotz v. Winona & St. Peter Railroad Company
| Decision Date | 26 May 1897 |
| Docket Number | 10,364--(66) |
| Citation | 71 N.W. 257,68 Minn. 341 |
| Parties | CHARLES G. KLOTZ v. WINONA & ST. PETER RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Brown county, Webber, J., denying a new trial after a verdict for plaintiff for $ 800. Affirmed.
Brown & Abbott, for appellant.
On the question of contributory negligence cited Donaldson v Milwaukee, 21 Minn. 293; Brown v. Milwaukee, 22 Minn. 165; Smith v. Minneapolis, 26 Minn. 419; Abbett v. Chicago, 30 Minn. 482; Rogstad v. St Paul, 31 Minn. 208; Marty v. Chicago, 38 Minn 108; Carney v. Chicago, 46 Minn. 220; Johnson v Truesdale, 46 Minn. 345; Clark v. Northern, 47 Minn. 380; Studley v. St. Paul, 48 Minn. 249; Miller v. Truesdale, 56 Minn. 274; Magner v. Truesdale, 53 Minn. 436; Schlimgen v. Chicago, 90 Wis. 186; Braudy v. Detroit, 107 Mich. 100; Duvall v. Michigan, 104 Mich. 386; Gardner v. Detroit, 97 Mich. 240; Elliot v. Chicago, 5 Dak. 523; Romeo v. Boston, 87 Me. 540; Gangawer v. Philadelphia, 168 Pa. 265; Derk v. Northern, 164 Pa. 243; Moore v. Keokuk, 89 Iowa 223; Shirk v. Wabash, 14 Ind.App. 126; Louisville v. Stephens, 13 Ind.App. 145; Texas v. Brown, 2 Tex. Civ. App. 281; Louisville v. Hairston, 97 Ala. 351; Montgomery v. Alabama, 97 Ala. 305; Louisville v. Richards, 100 Ala. 365; Matthews v. Atlantic, 117 N.C. 640; Missouri v. Moseley, 57 F. 921. Omission to provide a flagman at a crossing and to ring the engine bell when approaching it do not constitute negligence as against a person who is walking along the track, since such precautions are for the sole benefit of those about to cross the track. Chicago v. Eininger, 114 Ill. 79; Roden v. Chicago, 133 Ill. 72; Pennsylvania v. Mooney, 126 Pa. 244; Kelly v. Michigan, 65 Mich. 187; Glass v. Memphis, 94 Ala. 581; Grethen v. Chicago, 22 F. 609; Magner v. Truesdale, supra.
John Lind, for respondent.
OPINION
Klotz, as administrator of the estate of Christian Hocker, brought this suit to recover damages for injuries inflicted by the act of the defendant resulting in the death of Hocker. The accident happened on Center street, in the city of New Ulm. This street is 120 feet wide, and is one of the principal traveled thoroughfares in said city, which contains a population of about 5,000 people. The defendant, a railway corporation, has for many years last past owned and operated its line of railway from the city of Winona westward through said city of New Ulm, crossing said Center street in close proximity to the City Planing Mill. Center street extends northerly and southerly from this crossing of the main line quite a long distance. Commencing at the main line on the west side of Center street, and extending northerly several blocks, is a sidewalk 12 feet wide. On the east side of the street, and coming from the south beyond the railroad tracks, is a sidewalk which intersects and crosses all of the railroad tracks, but on the northerly side of the Eagle Mill sidetrack it extends northerly only a short distance on the easterly side of Center street. Three of defendant's tracks cross Center street. The Eagle Mill track is north of the main line, which it leaves about 270 feet east of Center street, and, running across it, extends to Eagle Mill, a distance of more than 500 feet, curving to the northward after leaving the main line; and is upon a down grade from such intersection until it crosses Center street, where the track is quite level for at least 200 feet. This is the track upon which the plaintiff was injured.
On the east side of Center street the track is about 54 feet north of the main line, and on the west side of said street it is about 82 feet north of said line. The City Mill side track intersects with the main line about 60 feet east of Center street, which it crosses some 10 to 20 feet south of the main line, and extends to the City Mill, which is situated near the westerly boundary of Center street. Some 300 feet east of Center street, and about 50 feet south of the main line, is the Empire Mill. While it appears that it is a down grade on the Eagle Mill track from the junction with the main line to the place where Hocker was injured, it is impossible to tell, from the confused state of the record, just what that grade is, on account of the difference in the lettering in the paper book from that on the plat admitted in evidence.
The engine was backed down with tender attached, and the engine did not use any steam, the engine running from its own momentum at the time of the accident. One of the defendant's witnesses testified that the engine would run rapidly from its own momentum. There was somewhat of a conflict in the evidence as to the rate of speed the engine was actually moving. Some of the witnesses testified it was running fast; others that it was only running five or six miles per hour. The engineer testified that he could stop the engine, when running by steam, at 50 feet, on a level track, after he applied the emergency brake, when the engine was running five or six miles per hour. This engine was stopped on a level track, at about 160 feet from where the accident occurred. It ran about 100 feet after the signal was given to stop.
When the engine was running without steam, it made no noise except the rumbling of the wheels, as there is then no noise from the exhaust of the steam. In backing down, the engineer could not see any object upon the track nearer the tender than about 100 feet from it. The engine used at the time of the accident was a road engine, and not one usually used in switching. It appeared from the testimony of an experienced railroad man that it was the universal custom, in using switch engines, to have one with a footboard on the same, with a man stationed thereon as a lookout, to warn and protect switchmen or anybody else who should get on the track, and also to signal the engineer of the danger. There was no footboard on this engine, and no one stationed upon it to warn persons of danger, or to signal the engineer. The bell, however, was rung as the engine moved along the track from its junction with the main line to the place where Hocker was injured.
In the morning of May 7, 1895, about one-half hour before the accident, Hocker, who was a man 72 years old, went to the City Mill to get some chicken feed, having with him a wheelbarrow on which to carry it. He was unable to get the feed at the City Mill, and he then went over to the Empire Mill, where he also failed to get the feed; and then he returned to Center street, keeping south of the railroad tracks until he got to Center street, evidently, as it seems to be conceded, on his way to the Eagle Mill, to get the desired chicken feed. To do this, he crossed the City Mill side track and the main line and part of the Center street to the railroad crossing in question. There were two routes frequently traveled in crossing Center street from the east sidewalk to the west one in the direction of the Eagle Mill. One route for foot travel was from the junction of the east sidewalk with the main line, northwesterly to a point on the Eagle Mill side track a short distance east of the west sidewalk; and the other one, starting from the same point, traveling north on the east sidewalk to the Eagle Mill side track, and then crossing Center street on this side track. The reason for this appears to be that the west sidewalk, at its junction with the Eagle Mill side track, was built upon a trestle some three feet high, and, as the side track was built upon the same grade as the west sidewalk, it facilitated the passage across the sidewalk; it being difficult to get upon it on either side of the side track.
Immediately preceding the accident, Hocker was seen upon the Eagle Mill side track, several feet from the east of the west sidewalk, going westerly, with his wheelbarrow; and to aid in handling it he had a rope passed over his shoulders, and fastened to the handles of the wheelbarrow. While going in this position, the rope over his shoulders was struck by the tender, and Hocker was thrown down, the wheelbarrow broken into many pieces, and from the injuries which he then received Hocker shortly died. A short time before the accident the engine in question was moved from the City Mill, where it had been switching cars, along the City Mill spur, easterly, over the switch onto the main line and past the switch, where it was stopped until the switch was turned onto the Eagle Mill side track, when it backed westerly on that side track, and then moved to the place where the accident occurred. It is to be observed that this engine moved eastward from the City Mill near the route which Hocker took in going from the City Mill to the Empire Mill and then back to Center street, and near where he crossed the City Mill spur track and the main line on his way to the point where he was injured, and while he was going to Eagle Mill as was his custom to do.
Before going onto the switch from the main line, the engineer was blowing the whistle, but not doing so on the Eagle Mill side track at the time of the accident. There was no watchman at any point on the crossing, and the city mill was running and making considerable noise, and is situated about 120 feet from the place of the accident. There was no lookout on the tender or engine. When the engine and tender were being backed, the domes and the whistle were between the front of the tender and the bell. The trains on the Eagle Mill side track averaged about three per day, not running on regular time, so far as we can discover from the record. There were no obstructions at any point from the route traveled by the deceased so as to intercept his view of the movements of the...
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