Marengo v. Great Northern Railway Company
| Citation | 87 N.W. 1117,84 Minn. 397 |
| Decision Date | 22 November 1901 |
| Docket Number | 12,745,12,746 - (114,115) |
| Parties | AGNO MARENGO v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Supreme Court of Minnesota (US) |
Separate actions in the district court for Hennepin county by Agno Marengo, as father of Camile Marengo, an infant, to recover $35,000 for personal injuries to the boy, and by Agno Marengo individually to recover $3,500 for loss of services of his son by reason of such injuries. By consent the two cases were tried together before Elliott, J., and a jury which rendered separate verdicts in favor of plaintiff; in the first case for $8,000, and in the second case for $1,200. From an order granting a motion for judgment in favor of defendant in each case notwithstanding the verdict and denying a new trial, plaintiff appealed. Reversed, and a new trial granted.
Railway -- Fence.
Railway companies are imperatively required by G.S. 1894, §§ 2692-2695, to construct and maintain fences on either side of their tracks, which duty inures to the benefit of children of tender years, who may, by reason of negligence in that respect, be injured. Rosse v. St. Paul & D. Ry. Co., 68 Minn. 216, and Nickolson v. Northern Pac. Ry. Co., 80 Minn. 508, followed.
Railway.
This statutory duty to fence its tracks is subject to implied exceptions where legally platted but unopened streets run over and across the tracks. In such places the railroad company may not obstruct streets by fencing, although not opened by the public authorities.
Railway Yard.
Held, upon the facts disclosed by the evidence in this case, that defendant's tracks at the scene of an accident in Northeast Minneapolis did not constitute such a yard as to subject the place to an implied exception to the fencing statutes upon the ground that fences and cattle guards would endanger the lives of its employees.
Judgment notwithstanding Verdicts.
Held, also, upon the evidence in these cases, that the orders of the trial court directing judgments in these cases notwithstanding the verdicts therein were erroneous, for the reason that it seems fairly probable that in the respects upon which the court acted in such orders plaintiff might supply omissions on proof on another trial.
Parallel Tracks.
The fact that several railroad tracks run parallel to each other, and that a track of another company is also immediately adjacent and parallel thereto, will not excuse either company from complying with the statutory obligation to fence their tracks for the benefit of the public.
F. D. Larrabee, for appellant.
W. E. Dodge, Rome G. Brown and Charles S. Albert, for respondent.
Camile Marengo, an infant of tender years, went upon the tracks of defendant in Northeast Minneapolis, and while there was seriously injured by one of its trains. The father of Camile brings suit to recover for the injuries to his minor son under the statute (G.S. 1894, § 5164); also a separate action for the damages which he sustains as the child's parent. The cases were tried together. Separate verdicts were rendered for plaintiff in each case. Defendant moved for judgments notwithstanding the verdicts, or for new trials in the alternative. The trial court ordered judgments for the defendant, and specifically denied the motion for a new trial in each case. Plaintiff appeals from the respective orders, which brings the entire record here for review.
A description of the place of the accident is essential to a proper understanding of the questions to be reviewed. Four tracks of defendant extend in a northwesterly and southeasterly direction parallel to each other for more than a half mile through what the defendant designates as its "Northeast Minneapolis Yard." There is also, on the easterly side of these tracks, running parallel and in close proximity thereto, a track of the Northern Pacific Railway Company. The land adjacent to the railway tracks on the east for several hundred feet between the same and Monroe street -- a thoroughfare running due east and west some distance therefrom -- is an open field, but we are required by the concessions in the pleadings and the course of counsel at the trial to treat such open prairie as platted from the tracks to the line of Monroe street, although unopened by the city authorities at the time of the accident. Twenty-second and Twenty-third avenues are open and traveled from the east to Monroe street, but are not open further west, although their lines extend on the plat over the field, as well as across the railway lines. Neither the defendant nor the Northern Pacific Railway Company have fences adjacent to their right of way east of their tracks.
The injured minor was a young lad of less than seven years, living with his parents. He left home on the morning of the accident. Seeing some boys west of the tracks, supposing they were his brothers, he ran over to the place where they were. Finding they were not the persons he thought, he immediately started to return, and while on one of defendant's tracks was thrown or fell under the wheels of a freight car then being moved by a locomotive, which caused the injury complained of.
The substantive basis of plaintiff's right to recover is defendant's neglect to maintain fences, as required by law, on the east side of its tracks, by reason of which the young lad was permitted, without legal fault on his part, to stray upon the place of danger. The right to recover for injuries to children in such cases has been already settled, and we are not inclined to disturb the rule laid down in the late decisions of this court in respect to the obligation of railway companies in that respect. Rosse v. St. Paul & D. Ry. Co., 68 Minn. 216, 71 N.W. 20; Nickolson v. Northern Pac. Ry. Co., 80 Minn. 508, 83 N.W. 454.
Railways must observe the statute, save where there is some exception by implication based upon public policy, necessity or convenience, which requires such exception as station grounds, streets, public places, etc. Greeley v. St Paul, M. & M. Ry. Co., 33 Minn. 136, 22 N.W. 179. In these cases the burden of showing the exception rests upon the company. Cox v. Minneapolis, Sault Ste. M. & A. Ry....
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