Marty v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 02 January 1888
• Citation: 35 N.W. 670,38 Minn. 108
• Parties: MARTY v CHICAGO, ST. P., M. & O. RY. CO., (TWO CASES.)
• Court: Minnesota Supreme Court

38 Minn. 108

35 N.W. 670

MARTYvCHICAGO, ST. P., M. & O. RY. CO., (TWO CASES.)

Supreme Court of Minnesota.

January 2, 1888.

(Syllabus by the Court.)

Where a highway crosses a double-track railway, over which trains are liable to run frequently in opposite directions, it is contributory negligence for a traveler thereon, whose view of the second track is obscured by the presence of a passing train on the track nearest to him, to pass immediately upon the crossing as soon as the way is clear, without waiting to look or listen for the approach of a train in the opposite direction on the second track.

Appeal from district court, Ramsey county; BRILL, Judge.

J. H. Howe and C. D. O'Brien, for Chicago, St. P., M. & O. Ry. Co., respondent.

I. V. D. Heard, for Fred Marty and John Marty, appellants.

VANDERBURGH, J.

These two cases were tried together, and were dismissed at the close of plaintiffs' testimony. The cause of action arose out of alleged injuries to the plaintiff Fred Marty, and to the team and wagon of John Marty, driven by the former, occasioned by a collision with one of defendant's trains at a railway crossing in the suburbs of the city of St. Paul. At the place in question the road or high way traveled by the plaintiff crossed first the track of the St. Paul & Duluth Railroad, which was distant west of the defendant's track about 100 feet. It then runs south between the two railroads for a short distance, and turns and crosses at right angles the roadway of the defendant, which at that place has a double track, the inside rails of which are 11 feet apart.

The accident occurred on the fourteenth day of May, 1886, between 7 and 8 o'clock in the evening, as the plaintiff, who was a butcher, accompanied by a friend, who occupied the same seat with him, was attempting to cross the tracks of defendant with the loaded wagon. He was returning from the slaughter-house of his brother, the plaintiff John Marty, where he was employed every day. It was situated north-west of the railroads, which he had been in the habit of crossing daily for years, at the place in question. After he had crossed the track of the St. Paul & Duluth road, he came up to within about 25 feet of the westerly track of the defendant's road, which was used for incoming trains, and stopped to wait for the passing of a freight train then occupying the crossing and going into the city. This train obscured the view of the other track, and the plaintiff did not see or hear the approach of...