McCrory v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 13 June 1887
• Citation: 31 F. 531
• Parties: McCRORY, Adm'x, etc., v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — District of Minnesota

31 F. 531

McCRORY, Adm'x, etc., v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, D. Minnesota.

June 13, 1887

This action is brought by plaintiff, the personal representative of Charles McCrory, deceased, to recover damages for the killing of said McCrory by defendant's train. The testimony showed that plaintiff's intestate was last seen approaching on foot a crossing of defendant's track at Twenty-sixth avenue south, Minneapolis, Minnesota, about 75 feet from the track, a few minutes after 9 A.M., on the morning of January 24, 1886, and that he was run over and killed by a regular passenger train running between Minneapolis and St. Paul. It appeared that at the time of the accident a freight train from the east was going over the crossing, and the passenger train which caused the death of McCrory was approaching rapidly from the west, the latter train being on the track nearest deceased. It was admitted that the passenger train was running at a considerably higher rate of speed than was allowed by the ordinance of the city of Minneapolis,-- from 18 to 24 miles an hour, the witnesses said, and the testimony was to the effect that no bell was rung or whistle sounded. It was admitted there was no flag-man at the crossing. It was also shown that at this point the country is flat, with but few houses in the immediate vicinity of the crossing, and that, when deceased was within 75 feet of the track, and from that point to the crossing, the view of the track on which the passenger train was approaching was entirely clear and unobstructed. Nobody seems to have witnessed the accident itself. The morning was very cold,-- 30 deg. below zero, according to the testimony of one witness,-- with a strong wind from the northwest; and it was testified that the steam and smoke from the engines instead of rising in the air, fell to the ground, and covered the tracks at the crossing, thus enveloping the deceased, and hiding him from view; and that probably the steam and smoke from the freight train obscured the approaching passenger train. After the introduction of plaintiff's testimony the defendant moved that the jury be instructed to find a verdict for the defendant, upon which the court gave the following opinion.

C. K Davis, for plaintiff.

W. H Norris and Flandrau, Squires & Cutcheon, for defendant.

BREWER J.

There is but one question to be determined. The railroad company was clearly negligent, not...