Mark v. St. Paul, Minneapolis & Manitoba Railway Company

• Decision Date: 12 June 1884
• Citation: Mark v. St. Paul, Minneapolis & Manitoba Railway Company, 20 N.W. 131, 32 Minn. 208 (Minn. 1884)
• Parties: Peter M. Mark, Administrator, v. St. Paul, Minneapolis & Manitoba Railway Company
• Court: Minnesota Supreme Court

20 N.W. 131

32 Minn. 208

Peter M. Mark, Administrator, v. St. Paul, Minneapolis & Manitoba Railway Company

Supreme Court of Minnesota

June 12, 1884

Appeal by defendant from an order of the district court for Hennepin county, refusing a new trial, after a trial before Koon, J and a jury. A former appeal is reported, 30 Minn. 493.

Order affirmed.

R. B Galusha and Benton & Roberts, for appellant.

Arthur J. Shores, for respondent.

OPINION

Mitchell, J.

This is an action by plaintiff, as administrator, for causing through negligence the death of Hemberg, his intestate. Hemberg was employed at a planing-mill at the corner of Fifth street and Second avenue, on the east side, in the city of Minneapolis. At the corner of this avenue and Fourth street was a furniture factory. Along and near the planing-mill and factory, and between them and the avenue, the defendant, for their accommodation in loading and unloading lumber and furniture, had laid a spur track. The planing-mill proper set back from the line of this spur track about 20 feet. A shed extended from the mill to within about four feet of the track. There were several planers in the mill. The lumber was fed into the mill on the side away from the track, and passed through the planers at right angles and towards the track coming out within a few feet of it. The planed lumber, as it was taken from the planers, was piled on the opposite side of the track, and as close to it as it conveniently could be, for the purpose of loading it into cars. The land across the track, upon which the lumber was thus piled, belonged to the defendant company. A man was employed at each planer to receive the boards as they came from it, carry them across the track, and pile them up. As each planer ran through about 30,000 feet a day, the act of crossing the track by these men in carrying this lumber was necessarily very frequent and constant, the whole distance traversed by them being very short. This seems to have been the usual mode of conducting the business, and had apparently obtained for a considerable time.

It does not appear that the owners of the planing-mill had obtained express authority to thus use the land and track of the company, but, under the circumstances, it is clear that they must have been fully aware of the fact of such use, and, it not appearing that they objected, it is to be assumed that it was with their permission and consent, and therefore that the owners of the planing-mill were in the lawful use of this land and track to the extent and for the purposes stated.

The planers made a great deal of noise, so that it would be difficult, if not impossible, to hear an approaching car. This spur track was not used for the general and regular business of the road, but simply to set in such cars as were to be loaded or unloaded at the mill or factory. These cars were not set in at any regular or stated times, but merely as occasion required, at irregular intervals, sometimes more and sometimes less frequently. The owner of the furniture factory testifies that the car-loads of furniture sent out would not at that time exceed one in a week or one in two weeks, and of lumber brought in would sometimes be two or three in a day, and sometimes not one for two or three weeks. The owner of the planing-mill testifies that cars came in to take lumber out every day; sometimes two or three times and sometimes once a day, and sometimes three or four or five times a day. There were two methods by which these cars were brought in: one by "pushing," -- that is, where the engine follows the car to its place; the other by "kicking," -- that is, by giving the car an impetus with an engine, and then uncoupling it and letting it run to its place with this impetus.

One of the men engaged in carrying the lumber from the planers across the track was the deceased. The pile to which he was carrying the boards, on the occasion of the accident, was about seven feet high, with the ends of the boards towards the track, and about four feet from it. The manner of doing the work was to take a board as it came from the planer, carry it across the track, put one end on the pile and the other end on the ground, and then turn around and go back to the mill for another board, while a man on the pile would draw up the first. From this it is evident that while engaged in the acts of putting down a board, and turning around to go back, deceased must have stood very near the side of the track. On this occasion a car was "kicked" in at an unusually rapid rate of speed without any warning or means of warning to deceased or others, except that a brakeman on the top of the car hallooed when he saw Hemberg's danger, but which the latter...