Mehalek v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company
| Decision Date | 17 July 1908 |
| Docket Number | 15,746 - (181) |
| Citation | 117 N.W. 250,105 Minn. 128 |
| Parties | ALEX. MEHALEK v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by the father of John Mehalek, a minor, to recover $8,500 for personal injuries alleged to have been sustained by his son on account of the negligence of defendant's flagman in allowing the boy to board a train. Two actions were originally brought one on behalf of the father and one on behalf of the boy. They were consolidated and tried as one action by stipulation of the parties. This case was tried before John Day Smith J., and a jury which rendered a verdict in favor of defendant. From an order denying his motion for a new trial plaintiff appealed. Affirmed.
Invitation to Ride on Train.
An invitation by implication to ride on freight trains is not sustained by omission of the flagman and trainmen to pursue and drive away boys who attempt to steal a ride while the train is passing a street crossing.
Omission to Construct Gates -- Proximate Cause.
It conclusively appears from the evidence that the omission by respondent company to construct gates at a street crossing in accordance with the requirements of a city ordinance was was not the proximate cause of the injury to appellant's son, an intelligent boy, nine years eight months old, who crossed over the tracks at the street crossing for the express purpose of catching and riding upon a passing freight train.
H. E. Fryberger, for appellant.
Alfred H. Bright, for respondent.
Appellant maintained several railroad tracks at its crossing at Twenty-Fifth Avenue Northeast, Minneapolis, about two blocks from the Schiller public school. The crossing was not furnished with safety gates, and the right of way was not inclosed with a fence; but a flagman was stationed at the crossing for the purpose of warning the public of approaching trains. For many years respondent company had operated a certain freight train, which reached this point every day about the time school was dismissed, four o'clock p.m. On May 3, 1907, John Mehalek, in company with another little boy, went from the school to the crossing, passed the flagman, and went over to the other side of the track just before the train arrived. The train consisted of about thirty five or forty freight cars, and according to the boy's testimony, as the last car came along he started to run along beside it, about a foot and a half from it, for the purpose of catching hold of the ladder on the car, when he stumbled and fell forward, striking his left hand against the car, and was whirled around so that his left leg was carried under the wheel and run over below the knee.
Appellant seems to claim negligence on the part of the company on the ground that the flagman was incompetent for the duties which it was necessary for him to perform at that crossing, and that a competent flagman would have been able to prevent the boys from getting on the train. Another suggestion, as legal ground for negligence, is that by not preventing the boys from boarding and riding this train for a number of years the company held out an invitation to them to do so, and therefore owed them the duty of so regulating the speed of the train at its crossing as to lessen the danger of accidents, and that upon this occasion the train was run at an unusually high speed.
We find no evidence in the record to found any legal basis for negligence on these grounds. It does not appear that it was the duty of the flagman to follow the boys and see that they did not get on the train, and it is very...
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