Lillstrom v. Northern Pacific Railroad Co

• Decision Date: 12 June 1893
• Citation: 55 N.W. 624,53 Minn. 464
• Parties: Ingri Lillstrom v. Northern Pacific Railroad Co
• Court: Minnesota Supreme Court

55 N.W. 624

53 Minn. 464

Ingri Lillstrom v. Northern Pacific Railroad Co

Supreme Court of Minnesota

June 12, 1893

Argued April 28, 1893.

Appeal by defendant, Northern Pacific Railroad Company, from an order of the District Court of Clay County, Ira B. Mills, J made July 25, 1892, denying its motion for a new trial.

Peder Lillstrom died February 20, 1890. He was injured in the manner stated in the opinion. Plaintiff, Ingri Lillstrom, his widow, was appointed administratrix of his estate, and brought this action under 1878 G. S. ch. 77, § 2, as amended by Laws 1889, ch. 109, to recover $ 10,000 damages for the exclusive benefit of herself and his next of kin.

At the close of all the testimony, the defendant moved the court to direct the jury to return a verdict in favor of the defendant, for the reason that it appears conclusively by the undisputed evidence that the crossing in question was put in by private individuals, at their own instance, and for their own use, and not on any line of any public highway, and that assent to the use thereof by the public had never been given by the defendant. That the injury complained of was not a natural or probable result of taking up the crossing plank and was not a result to be anticipated to follow from such act. The taking up of the plank was not the proximate cause of the injury. The testimony does not show a cause of action against the defendant in favor of the plaintiff. The motion was denied, and defendant excepted. The court, among other things, instructed the jury as follows: "From the testimony in this case, it appears that this was not a public highway; there is no evidence that this was a public laid out highway, the testimony is to the contrary. So the defendant had the right as against the public to take up the crossing there was no duty on it to maintain this crossing. But if you find that the road was frequently traveled and used by the public, and defendant took the crossing up without putting up any barriers or notice, and the deceased had no notice of it then, if the road was left in a dangerous condition, it would be negligence on its part. If defendant had put up a notice to call the attention of the public to it, then the public could not have complained. Whatever were its duties to the farmers who had built the crossing, it was under none to the public. But if defendant took up this crossing without putting up barriers or something to notify the public, then, if the public had been using it much, the plaintiff can recover, provided the deceased was free from negligence. The deceased was bound to use such reasonable and ordinary care as a prudent man would use at such a crossing. The crossing having been maintained by the defendant, the deceased had a right to suppose that it was in a reasonably safe condition, that is, such condition as it was in before; but he was bound not only by what he had seen, but by what he did see there, and he was bound to keep such lookout for danger as an ordinary person would do under the same circumstances." To the giving of these instructions, defendant duly excepted.

Plaintiff had a verdict January 12, 1892, for $ 4,500. Defendant moved for a new trial, and being denied, it appeals.

Order affirmed.

J. H. Mitchell, Jr., and Tilden R. Selmes, for appellant.

W. B. Douglas and Davis, Kellogg & Severance, for respondent.

Collins, J. Vanderburgh, J., did not participate.

OPINION

Collins, J.

The plaintiff's intestate, her husband in his lifetime, came to his death through the negligence of defendant railway company, it is claimed, and in this action, which was brought to recover for the alleged wrongful killing, plaintiff had a verdict. The facts as established on the trial were that, when living, the deceased resided with his family on a farm in a prairie country about one mile east of defendant's line of railway. On the morning of February 18, 1890, he left home with a pair of horses attached to bob sleighs to go several miles northwesterly for a load of wood, to obtain which he had to cross to the west side of said line of railway. Leading in the direction he had to go was a generally traveled wagon road, which crossed the railway about five miles from his residence. This road, at least where it crossed the track, was not a regularly laid out highway, but it, including the crossing, had been used by the public for several years. Immediately after the railway was constructed, some five years before the accident in question, two farmers residing in the vicinity had prepared the crossing by digging the approaches, and by placing planking inside and outside the rails. The defendant's section men took charge of the crossing at once, repaired the planking, replaced the same as needed, and otherwise kept the same in proper condition for travel, as fully as if it had been a legally laid out or established highway. The evidence was abundant upon this point, and also that the traveling public had very generally crossed the railway at this place while it had been maintained, preferring it to other crossings on either side. The planking between the rails before mentioned had been kept in place continuously from the time it was first put in until about one month prior to the day on which Lillstrom received his injuries, and was then removed by defendant's section men to prevent the accumulation of snow at that point, and thus facilitate the operation of the railway. No sign was put up, or barriers erected, to notify the traveler of this removal.

On the trial it was shown that, in his lifetime, Lillstrom had used this crossing, and when it was in good repair. It appeared that he crossed at another place when going for the wood, and it was not shown that he had been at this crossing at all after the planks were taken up, until he was injured.

The 19th of February was a stormy day. About 4 P. M. a neighbor discovered Lillstrom lying upon the ground, then covered with snow, at this crossing. His horses, attached to the bob sleighs with one trace only, stood on the west side of the rails. One singletree was broken. Upon the sleighs was a heavy load of wood. He had evidently approached the place along the road from the west, (the railway running north and south,) for the rear bob stood...