Moody v. Canadian Northern Railway Co.
| Decision Date | 29 June 1923 |
| Docket Number | 23,415 |
| Citation | 194 N.W. 639,156 Minn. 211 |
| Parties | MARY MOODY v. CANADIAN NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Roseau county to recover $3,000 for injuries received when an automobile and defendant's train collided. The case was tried before Watts, J., who when plaintiff rested denied defendant's motion to dismiss and at the close of the testimony its motion for a directed verdict, and a jury which returned a verdict for $1,500. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Verdict that defendant was negligent in moving train permissible.
1. Under the evidence the jury might find that the driver of an automobile in which plaintiff was a passenger attempted to cross defendant's railroad track, relying on a signal from its brakeman to the drivers of automobiles ahead, and that, when the automobile was very near the rails, without warning, the train began to back and struck it. If the jury so found, they might conclude that defendant was negligent and that its negligence was a proximate cause of plaintiff's injury.
Verdict that defendant should have had warning device at crossing permissible.
2. Following Engstrom v. Canadian Northern Ry. Co. 153 Minn. 46, it is held that the jury might find that defendant was negligent in failing to maintain gates, a flagman or other appliance to warn travelers at the crossing, and that such negligence was a proximate cause of plaintiff's injury.
When defendant and driver of automobile would be liable.
3. If the negligence of the defendant concurred with that of the driver of the automobile and plaintiff would not have suffered injury but for the negligence of both parties, each is liable.
Contributory negligence for jury.
4. The alleged contributory negligence of the plaintiff was properly left with the jury for their determination.
Testimony of plaintiff's husband not prejudicial.
5. Under the circumstances mentioned in the opinion, error in permitting a layman to testify to the nature of plaintiff's injury was not prejudicial.
Instruction was correct.
6. It was proper to instruct that extra precautions should be taken to avoid injury, to travelers lawfully on a railroad crossing when cars are backed over the crossing in switching operations.
No error when whole charge covers request to charge.
7. Prejudicial error cannot be predicated on the modification of a proper request for an instruction if the charge, taken as a whole, correctly states the law applicable to the issues to which the requested instruction was directed.
Refusal to submit special questions correct.
8. There was no abuse of discretion in denying defendant's request for the submission of special interrogatories to the jury.
Verdict of $1,500 not excessive.
9. The award of damages was not so excessive as to justify an appellate court in interfering with the verdict.
Hector Baxter, Bert Hanson and Brown & Guesmer, for appellant.
Grady & Fosmark, for respondent.
Appeal from an order denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial.
Plaintiff sued to recover damages for personal injuries sustained when the automobile of Nels Engstrom, in which she was riding, was struck by one of defendant's trains at a street crossing in Warroad, Minnesota. The same accident was involved in Engstrom against this defendant, reported in 153 Minn. 46 189 N.W. 580 and 190 N.W. 68, and in the instant case the accident was described by the same witnesses.
Plaintiff based her right of recovery on the alleged negligence of the defendant in two respects: (1) In inviting the driver of the Engstrom automobile to cross the railroad track when it was dangerous to do so; and (2) in failing to maintain a flagman, gates, or a signaling device at the crossing to warn travelers of the approach of trains. The jury were instructed that there might be a recovery if defendant had been negligent in either respect.
Defendant contends that there was an entire failure to prove that it was negligent, or that plaintiff's injury was proximately caused by the negligence alleged, and that plaintiff's contributory negligence was conclusively established.
1. In the Engstrom case, the jury found specifically that defendant's negligence consisted solely in its failure to maintain gates, a flagman or some appliance at the crossing to warn travelers of the coming of trains. In the case at bar there was only a general verdict, and, therefore, it is impossible to know on which charge of negligence the jury based their verdict, or whether it was based on both charges. If either charge was not sustained by the evidence, the verdict should not have been allowed to stand. Lindemann v. Chicago, R.I. & P. Ry. Co. 154 Minn. 363, 191 N.W 825. The first inquiry is whether there was sufficient evidence to make the question of negligence one for the jury.
The testimony of the witnesses Hoyez and Weitmeier was the same as in the Engstrom case. See 153 Minn. 46, 189 N.W. 581. The testimony of plaintiff is somewhat different. She said Engstrom stopped his automobile between the office of the Marvin Lumber Company and the track "just a couple of instants" and then drove on; that, when she first saw the train, the automobile was 20, 22 or 24 feet from the track, moving slowly but gradually gaining speed; the train was backing and a brakeman was hanging to the end car, and he shouted when the automobile was almost on the track. Plaintiff was not asked whether the Hoyez and Weitmeier automobiles were ahead of Engstrom, or whether the brakeman signaled the drivers to cross the railroad track.
The witness Brown testified that, as he entered the office of the Marvin Lumber Company, he looked west and saw an automobile turning into Lake street. He did not know whose it was or how many persons were in it. He looked out of the office a moment later and saw the Engstrom automobile moving slowly towards the railroad track. It was near the foot of a slight incline leading up to the rails. He saw no other automobile west of the track and no trainman at the crossing. The train was then standing still, but began to move back as the automobile came up the incline. These were all the witnesses called by plaintiff to describe the accident.
It was also described by several witnesses called by defendant. One of them said that immediately before the accident she walked along the north sidewalk on Lake street, crossed the railroad track, and when she reached a spur track east of the main line crossed to the south side of Lake street and walked a short distance along the south sidewalk. Then she heard shouting behind her, turned and saw the train slowly backing and the front end of Engstrom's automobile 7 or 8 feet from the rails, and saw the automobile move forward until it was struck by the train. She said the train was standing south of Lake street when she crossed the track and that she saw no automobiles going over the crossing at that time.
Another witness testified that, as he walked diagonally from the south to the north sidewalk west of and near the crossing the Engstrom automobile came up behind him without stopping and the collision occurred, and that he saw no other automobiles west of the crossing; and another, that he saw the Engstrom automobile come up the incline, but not the Hoyez or Weitmeier automobiles.
One of the witnesses was at an oil house located east of and near the crossing. He first saw the Engstrom automobile when it was 60 or 70 feet from the railroad track, saw the brakeman wave his hand and heard him shout...
To continue reading
Request your trial