Lindemann v. Chi., R. I. & P. Ry. Co., No. 23257.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: HALLAM
• Citation: 154 Minn. 363,191 N.W. 825
• Parties: LINDEMANN v. CHICAGO, R. I. & P. RY. CO.
• Decision Date: 26 January 1923
• Docket Number: No. 23257.

154 Minn. 363
191 N.W. 825

LINDEMANN
v.
CHICAGO, R. I. & P. RY. CO.

No. 23257.

Supreme Court of Minnesota.

Jan. 26, 1923.

Appeal from District Court, Dakota County; Albert Johnson, Judge.

Action by Fred Lindemann against the Chicago, Rock Island & Pacific Railway Company. Verdict for plaintiff, and defendant appeals. Reversed, and new trial granted.

Syllabus by the Court

Where two grounds of recovery are submitted to a jury, one of them erroneously, and a verdict is rendered for the plaintiff in such manner that it is impossible to tell on which ground the jury based their verdict, a new trial must be granted.

Where a railroad crosses a farm, it is required to provide a gate at a farm crossing, and to maintain the gate and its fastenings in a reasonably good state of repair. There is sufficient evidence in this case to raise an issue of fact as to whether a reasonably secure gate fastening was maintained.

Willful negligence in killing stock by a railroad train can only be predicated on the fact that the trainmen saw the animals in their place of danger in time to avoid injuring them. The evidence in this case is insufficient to show willful negligence.

[191 N.W. 825]

O'Brien, Stone, Horn & Stringer, of St. Paul, for appellant.

Alfred E. Rietz, of Farmington, for respondent.

HALLAM, J.

Action for damages for the killing of two horses, a cow and a donkey, on defendant's right of way, and by defendant's train. The jury found for plaintiff. Defendant appeals.

Plaintiff is a farmer. Defendant's right of way passes through his farm. The right of way is fenced through plaintiff's farm. At a private crossing, defendant constructed a gate. On the night of October 14, 1921, this gate was open, the animals mentioned strayed through the gate, and onto the railroad track, and were killed by a passing train.

1. Plaintiff makes two charges of negligence on the part of defendant: First, that defendant failed to maintain a sufficient latch or fastening for the gate, and that it came open by reason of that fact; and, second, that the trainmen saw the animals on the track, and through willful and wanton negligence ran over them. Both questions were submitted to the jury. The verdict was general. There was no special finding, and it is impossible to determine on which ground the jury based their verdict. Under repeated decisions of this court, if either is without evidence to sustain it, the case was erroneously submitted and a new trial must be granted. Holden v....