Kommerstad v. Great Northern Railway Company
| Decision Date | 31 January 1913 |
| Docket Number | 17,827 - (187) |
| Citation | 139 N.W. 713,120 Minn. 376 |
| Parties | JOHN KOMMERSTAD v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Lyon county to recover $30,000 for personal injury. The facts are stated in the opinion. The defendant demurred to the complaint for the reason that on its face it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, Olsen, J. From the order overruling the demurrer, defendant appealed. Affirmed.
Failure to fence track -- risk assumed by section man.
Failure of a railway company to fence its track as required by statute is evidence of negligence. Held, however, following Fleming v. St. Paul & D.R. Co. 27 Minn. 111, that this liability is subject to such qualification as the general rules of law impose in analogous cases, and that if a section man enters and continues in such service, knowing that the road is not fenced, he assumes the risks naturally incident to such condition.
Defects in complaint -- demurrer.
Where the facts from which assumption of risk arises appear from the face of the complaint, that question may be raised by demurrer.
Complaint sufficient.
The complaint in this case contains the further allegations that defendant negligently operated its trains at an excessive rate of speed and negligently failed to give proper warnings and signals, and that by reason of such negligent operation the train struck a horse upon the track and threw it against plaintiff while plaintiff was engaged in his usual work of cutting grass upon the right of way. Held to state a cause of action.
Proximate cause of injury.
Held that these occurrences were not so improbable as to warrant the court in holding as a matter of law that the wrongful act was not the proximate cause of the injury.
Winsor & Keith and M. L. Countryman, for appellant.
Tom Davis, Ernest A. Michel, D. L. Kennedy and John I. Davis, for respondent.
This is an appeal from an order overruling a demurrer to plaintiff's complaint. Plaintiff alleges that he was in the employ of the defendant as a section man cutting grass upon defendant's right of way; that defendant failed to fence its track as required by law; that by reason thereof a horse strayed upon the track near where plaintiff was employed; that while on the track it was struck by a train of defendant and thrown against plaintiff. It is further alleged "that said defendant negligently, recklessly, and carelessly ran said train at a high and dangerous rate of speed; * * * that said defendant negligently, recklessly and carelessly failed and neglected to give any warning whatsoever of the approach of said train, and that said defendant gave no signal whatsoever to keep or frighten the said horse from said tracks of said defendant, and that said defendant negligently ran said engine into and against said horse, and that by reason of the failure of said defendant to provide good and substantial fences on each side of its track at the point aforesaid, and by reason of the negligent operation of said train, and by reason of the failure of defendant to give warning of the approach of said train, and by reason of the excessive and unlawful rate of speed at which said train was run, and the negligent manner in which said train was run, said horse was struck and thrown upon and against plaintiff."
Defendant demurred on the ground that the complaint failed to state a cause of action. Two grounds of negligence are here alleged First, the failure of defendant to fence its track as required by statute; second, the negligent operation of train. If the first ground alone were involved, the demurrer would be well taken. The statutes of this state provide that every railroad company shall maintain a good and substantial fence on each said of its line of road, and that any company failing to comply with such requirements shall be liable for all damages resulting therefrom. R.L. 1905, §§ 1997, 1998, chapter 309, Laws 1911.
1. It is well settled that the effect of these statutes is to make a failure to fence evidence of negligence (Fleming v. St. Paul & Duluth R. Co. 27 Minn. 111, 6 N.W. 448; Ellington v. Great Northern Ry. Co. 96 Minn. 176, 104 N.W. 827), and to make the railroad company liable for all damages to person or property sustained by any person in consequence of such failure or neglect.
It is however, equally well settled that this liability is subject to such qualification as the general rules of law impose in analogous cases; that the doctrine of assumption of risk applies as in any other case of negligence, so that...
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