Nelson v. Northern Pacific Railway Co.
| Decision Date | 15 November 1912 |
| Docket Number | 17,707 - (33) |
| Citation | 138 N.W. 419,119 Minn. 347 |
| Parties | SARAH J. NELSON v. NORTHERN PACIFIC RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county by the administratrix of the estate of William J. Nelson, deceased to recover $5,000 for the death of her intestate. The answer admitted that on or about December 23, 1910, deceased was fatally injured by being struck by one of defendant's trains while upon or near Fifty-seventh avenue west in the city of Duluth; and alleged that the injuries of deceased were caused by his own negligence. The case was tried before Dibell, J., and a jury which returned a verdict in favor of plaintiff for $5,000 and in favor of defendant John Grimes. From an order denying defendant Northern Pacific Railway Company's motion for judgment notwithstanding the verdict or for a new trial, it appealed Affirmed.
Presumption not conclusive.
The presumption that a person who was killed by a train while crossing a railroad track at a street intersection exercised due care for his safety contains no elements differentiating it from the ordinary presumption of right conduct, and is not conclusive. It may be overcome by direct evidence or by facts and circumstances clearly showing a failure to exercise due care.
Presumption not conclusive -- evidence.
Force and effect will be given the evidence tending to overcome the presumption whether it appears from the plaintiff's case in chief or from that offered by defendant.
Negligence -- verdict sustained by evidence.
In this case the evidence is held to justify a verdict of negligence against defendant, and exonerating decedent from contributory negligence.
C. W Bunn and Washburn, Bailey & Mitchell, for appellant.
John Jenswold, Jr., C. R. Magney and H. W. Lanners, for respondent.
Action for damages for the alleged wrongful death of plaintiff's intestate in which plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment or a new trial.
The facts are as follows: Defendant operates a line of railroad at grade over and across Fifty-seventh avenue in the city of Duluth. Two main tracks and one side track extend over the avenue, at an angle of about forty-five degrees. Trains from Duluth pass over the north main track, and those going into Duluth over the south track. The side track is about nine feet from the south main track, and runs parallel with it across the avenue. The crossing is in a well-settled part of the city, and is much frequented and made use of for public traffic and travel. On December 23, 1910, at about 6:30 o'clock in the evening decedent was struck by a train passing over the south bound track into Duluth and killed. This action followed.
The complaint charged three distinct grounds of negligence, namely: (1) The failure of defendant to give any warning of the approach of the train, by ringing the bell or sounding the whistle of the engine; (2) excessive and unlawful speed of the train, and (3) the failure to provide either gates or a watchman at the crossing, contrary to the municipal regulations of the city. There was some evidence tending to show a failure to give the usual signals, but that ground of negligence was abandoned on the trial, and the question was withdrawn from the jury. The verdict rendered in favor of the engineer, a party to the action, negatived negligence in respect to the speed of the train, and, so far as the alleged negligence of the railroad company is concerned, the verdict was based entirely upon its failure to provide gates or a watchman at the crossing as required by the city regulations.
It is contended by defendant on this appeal: (1) That the evidence is insufficient to establish the negligence of defendant, in the respect just stated, and (2) that decedent was guilty of contributory negligence as a matter of law.
1. The evidence tends to show that this particular avenue is in a well-settled part of the city, and that it was much used by both pedestrians and teams. Buildings for residence and other purposes are situated upon either side of the avenue, and the avenue was used at the point where the railroad crosses the same by the people living in that vicinity. The crossing was considered by the city council as sufficiently dangerous to require a watchman or gates for the protection of those making use of the same, and a resolution, requiring the company to maintain gates or a watchman, was formally passed and served upon defendant several months before the accident here in question. The defendant failed to comply with the requirements...
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