Lawson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company
| Decision Date | 18 May 1928 |
| Docket Number | 26,635,26,636 |
| Parties | H. P. LAWSON v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY; JOHN NICKELSON AND ANOTHER v. SAME DEFENDANT |
| Court | Minnesota Supreme Court |
Two actions in the district court for St. Louis county, tried together, one by H. P. Lawson as administrator of the estate of Hans E. Nickelson to recover for his death, and the other by the administrator and a brother of the decedent to recover damages to a truck owned by the brothers. There was a verdict in each case for the defendant. From orders, Grannis, J. denying their motions for a new trial, the plaintiffs appealed. Affirmed.
Defendant was not negligent in failing to provide gates or guards at railway crossing.
1. Defendant was not negligent in failing to provide gates or other safeguards at the crossing, as it was not a crossing where they were required by law and was not extrahazardous.
Defendant was not negligent in placing locomotive waiting for its train at edge of street.
2. Placing a locomotive on a track leading from the roundhouse with its front at the edge of the street was not actionable negligence, although it obstructed the view of the main track to some extent.
Probative value of testimony pro and con as to hearing whistle or train bell.
3. As against the testimony of witnesses that they heard the whistle and bell of the train, the testimony of witnesses that they did not hear them is of no probative value unless it appears that the circumstances were such that they could and in the ordinary course of events would have heard them if sounded.
Evidence will not justify finding of failure on part of trainmen.
4. The evidence will not justify a finding that the train failed to blow the whistle or ring the bell.
Railroads 33 Cyc. p. 934 n. 17; p. 945 n. 69; p. 1091 n. 55.
See 22 R.C.L. 1006; 5 R.C.L. Supp. 1220; 6 R.C.L. Supp. 1346.
Leonard McHugh, for appellants.
John E. Palmer and Fryberger, Fulton & Boyle, for respondent.
On the morning of June 29, 1927, one of defendant's passenger trains going west collided with a truck driven by Hans E. Nickelson at a grade crossing on Twenty-first avenue west in the city of Duluth, Minnesota. Nickelson was killed, and Edward Paquette, riding with him, was injured. One action was brought to recover for the death, and another to recover for the damages to the truck. They were tried together and resulted in verdicts for defendant. Motions for new trials were made and denied, and the plaintiffs appealed.
The Whitney Materials Company has a plant for washing sand and gravel located on Lake Superior at the foot or south end of Twenty-first avenue west. Nickelson was hauling sand and gravel for the Whitney company from this plant, and at the time of the accident was on his way to the plant. Twenty-first avenue west extends north from this plant and intersects Michigan street at a right angle. Defendant's roundhouse is located on the southeast corner of this intersection, and two railroad tracks cross Twenty-first avenue south of the roundhouse. The south track is the main track, the other leads from the roundhouse to a switch which connects it with the main track a short distance west of Twenty-first avenue. No streets intersect Twenty-first avenue south of defendant's tracks, and the only buildings are a warehouse and the Whitney plant.
The court submitted to the jury two claims of negligence: (1) Failure of the train to give warning of its approach by blowing the whistle and ringing the bell; and (2) placing a locomotive on the north track where it obstructed the view of the south track. Plaintiffs also claim that defendant was negligent in failing to maintain gates or a watchman or other warning device at this crossing, and urge the refusal to submit this question to the jury as error.
Defendant insists that the legislature, by L. 1925, p. 424, c. 336, has committed to the railroad and warehouse commission the matter of determining the crossings at which conditions exist which require gates, watchmen or other safeguards for the protection of travelers; and that railroads are required to provide such safeguards only at crossings at which the commission has found that conditions exist requiring them. Whether the statute has the effect claimed for it we have no need to determine in this case, for the facts will not warrant a finding that under the common law rule additional safeguards were required at this crossing. The trains passing over it run at a moderate rate of speed. The street ended at the lake. The portion of it below the crossing did not connect with any other street and merely afforded access to a warehouse and the Whitney plant. There was but little travel over the crossing other than the trucks going to or from the Whitney plant. These vehicles passed over it many times each day, but the drivers were familiar with the situation. It is only where peculiar and unusual conditions render a crossing extrahazardous that a railroad company can be charged with negligence in failing to protect it by gates or other safeguards, unless the duty to provide such protection has been imposed by legislative authority. Hollister v. Hines, 150 Minn. 185, 184 N.W. 856, and the cases there cited; and see Perkins v. C.M. & St. P. Ry. Co. 158 Minn. 184, 197 N.W. 758. The evidence will not justify a finding that this crossing was of an extrahazardous character.
While the complaints charge that the train was negligently run at an excessive rate of speed, no attempt was made to establish that claim at the trial. No witness placed the rate of speed higher than 15 miles per hour.
Plaintiffs claim that defendant was negligent in placing a locomotive where it obstructed the view of the main track. The locomotive was standing upon the roundhouse track ready to go out. Its front was at or near the outer edge of the sidewalk but it was not in the street and the track where it stood was on defendant's own land. A locomotive was run out of the roundhouse and left at that place ready for the trainmen every morning. To some extent it obstructed the view of those approaching the crossing from the north and was an element...
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