Monahan v. Chi., M. & St. P. Ry. Co.

• Decision Date: 16 January 1903
• Citation: 92 N.W. 1115,88 Minn. 325
• Court: Minnesota Supreme Court
• Parties: MONAHAN v. CHICAGO, M. & ST. P. RY. CO.

88 Minn. 325

92 N.W. 1115

MONAHAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

Jan. 16, 1903.

Appeal from district court, Hennepin county; Frank C. Brooks, Judge.

Action by James Monahan against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

1. A trespasser in a railroad yard, intending to pass over a highway crossing the same and continue on the right of way, may cease to retain the illegal character of a trespasser, if, when entering upon the highway, he changes his purpose, and uses the street as an exit from the railway grounds.

2. Evidence in this case considered, and held that it was a question of fact whether a minor was injured by being thrown down by a railroad car, or by falling therefrom while he was stealing a ride; also that it was an issue of fact whether such minor was guilty of contributory negligence when run over by a freight car at a railway crossing. F. W. Root, for appellant.

F. D. Larrabee, for respondent.

LOVELY, J.

A father brings this action for injuries to his minor son. He recovered a verdict. Defendant moved to set it aside and for judgment in its favor, which was denied. Judgment was entered for plaintiff, from which defendant appeals.

The verdict requires us to adopt the following conclusions: Plaintiff's son, a lad about 12 years of age, had the toes of his left foot crushed by the wheels of a moving freight car upon one of defendant's tracks crossing Garfield avenue, in Minneapolis. At the time of the accident the boy lived with his parents on Lake street, some distance south of the place of the injury. He was attending a school situated several blocks north of the tracks, and east of Garfield avenue. There were several other streets running north and south, parallel to Garfield avenue, over this place, where trains were made up and switching done, so that there was no necessity for the boy to use the defendant's right of way in going to and from school. But he and other lads were in the habit of doing so, though such a course was known to be dangerous. In the latter part of October of last year, plaintiff's son was returning from school with a companion. He entered upon defendant's right of way east of Garfield avenue, and walked along the south side of the north track until he was quite near that thoroughfare; it being his intention to cross the street and continue on the right of way for several blocks, when he proposed to pass therefrom to his home. Several switchmen were moving cars on the north track. They had been previously troubled by boys jumping upon the cars, and as the two lads passed, going north, one of them, probably fearing that these lads would do likewise, called out, ‘Get away from there, or I'll kick your pants,’ and started forward several steps, as if to follow them. The boys, instead of continuing north over Garfield avenue, then turned and ran south on that street, apparently to leave the right of way. At the same time a bunch of three cars, which had been detached and kicked easterly from a locomotive operating further west, were moving by the momentum thus acquired; coming upon the avenue at a very slow rate of speed, over a spur track, at the instant the boys were crossing the same. These cars were not under the control of a brakeman or any person having them in charge. The plaintiff's son claims that he did not notice these cars until he was halfway across the spur track. He excuses his failure to discover danger by the fact that the cars were not attached to a locomotive; also that he was running, while the cars were moving very slowly,...