Mark v. St. Paul, Minneapolis & Manitoba Railway Co.
| Decision Date | 20 June 1883 |
| Citation | 16 N.W. 367,30 Minn. 493 |
| Parties | Peter M. Mark, Administrator, v. St. Paul, Minneapolis & Manitoba Railway Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county refusing a new trial, after a trial before Young, J and a jury.
Order reversed, and new trial ordered.
Arthur J. Shores, for appellant.
Benton & Roberts, for respondent.
The action is by plaintiff, as administrator, for causing through negligence, the death of his intestate, one Hemberg. In April, 1882, Hemberg was employed at a planing-mill at the corner of Fifth street and Second avenue north-east, in the city of Minneapolis. At the corner of said 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, and to receive from and deliver to them furniture and lumber, had laid a side-track from its main track, the expense of laying which was borne jointly by the defendant and the owners of the factory and mill. The planers in the mill stood about 20 feet from this side-track. The boards coming out of the planers came within from 6 to 10 feet from it. The planed lumber, as it was taken from the planers, was usually piled on the opposite side of the side-track, and between it and the avenue. There appear to have been three planers, and at each a man was employed in receiving the boards as they came from it, carrying them across the side-track, and piling them on the side opposite the mill. One of these men was Hemberg. The pile to which he was carrying boards at the time he was killed was about four feet from the track, and was lengthwise the track. One witness testified that each of these men had to cross the track about every second minute during the day; others appear to have been employed near and on both sides of the track between Fourth and Fifth streets. And there also appears to have been more or less lumber piled on each side of and near the track. One witness testified that there was a great deal of noise about the mill; that the noise "kills the sound of the cars." The defendant usually put a car in on this side-track by "kicking;" that is, by giving it an impetus with an engine, and then uncoupling and letting the car run in with the impetus thus given it. Cars were sent in that way four or five times a day, but it does not appear that it was done at any stated times; whenever the factory or mill was to receive or deliver a load, a car was sent in.
On the occasion of Hemberg's death a car was "kicked" in, and, he being on the track, it struck and killed him. There was evidence from which the jury might find that this car was sent in at an unusual rate of speed -- as high as nine miles an hour. It had no means of giving a signal of its approach, except by the calling out of the brakeman upon it. He did call out as the car approached the place where Hemberg was at work, and other persons also appear to have called out, and it may fairly be concluded from the evidence that Hemberg heard the shouting and saw the car when it was very near to him. As to his action after he saw it, there is some disagreement in the evidence. One witness testified that he had started to cross the track, carrying a board, and, as he was about to step on the...
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