Perkins v. Chi., M. & St. P. Ry. Co.
| Decision Date | 08 February 1924 |
| Docket Number | No. 23762.,23762. |
| Citation | 197 N.W. 758,158 Minn. 184 |
| Court | Minnesota Supreme Court |
| Parties | PERKINS v. CHICAGO, M. & St. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Pine County; J. N. Searles, Judge.
Action by Paul W. Perkins against the Chicago, Milwaukee & St. Paul Railway Company. From an order denying a motion for judgment or for a new trial, defendant appeals. Affirmed.
Where one in charge of an auto bus, traveling in a foggy night over a railway crossing having five tracks, stops the bus and walks ahead to a point between the second and third tracks, looking for approaching trains, and then runs back to the bus, which proceeds at a speed of about four miles per hour, and the person looks to his right at a headlight of a standing train, on the third track, headed toward the crossing, and watches for approaching trains from the right, and turns as he is nearing the last track and sees the headlight of a train 100 or 125 feet away coming from the left, which collides with the bus, he is a competent witness to give an opinion as to the speed of the train, and the probative value of such testimony is for the jury.
Under the above circumstances the testimony of the same witness testifying that he listened for approaching trains and did not hear any bell or whistle has probative value sufficient to take the issue to the jury although other witnesses testified that such signals were given.
Such evidence, while negative in form, is affirmative in substance.
Cotton v. Willmar & S. F. Ry. Co., 99 Minn. 366, 109 N. W. 835, followed. Whether a particular crossing is of such character as to require the maintenance of a flagman is a question for the jury.
Evidence examined as to the admission of certain correspondence, and found that, the same having been received and used only for a limited purpose, there was no harmful error.
A time table is admissible in evidence as bearing upon the speed of trains.
The running time of a regular train is competent as bearing upon the probable speed of a second section of such train at the time of the collision.
When the collision occurred between 11 and 12 o'clock at night, it was proper to receive evidence as to the traffic over the crossing at other hours of the day.
When witness L. has made a written statement of the collision, and then testifies at the trial substantially to the same effect, and is contradicted by witness A., it is proper for impeachment purposes to put in evidence the written statements of both witnesses when the statement of A. is inconsistent with his testimony, and when he therein says that he has read the statement of L. and that it is correct.
Record examined as to assignments of error relating to charge to jury, and found without error.
Under the circumstances above stated, it cannot be said that the plaintiff (through his employee in charge of the bus) was guilty of contributory negligence as a matter of law; that was a question for the jury to determine. F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, for appellant.
Hurley & Hurley, of St. Paul, for respondent.
Plaintiff sued to recover $3,000 for alleged damages to his auto bus which was struck by one of defendant's passenger trains on a crossing at Newport, Minn. The trial resulted in a verdict for plaintiff in the sum of $1,975. Defendant made a blended motion for judgment or for a new trial, and from an order denying the same has appealed.
The negligence charged is (1) speed of train, (2) failure to ring bell or blow whistle, and (3) failure to have flagman at crossing.
The railroad tracks at Newport run approximately north and south, and the highway between St. Paul and St. Paul Park parallels the railroad track on the west side from St. Paul Park to Newport, and then makes a right angle turn to the east, and crosses the track where the highway again turns at a right angle to the north and parallels the railroad track on the east side to Red Rock, a point just one mile north of the crossing in question. Five tracks intersect the highway at right angles. The turn in the highway in going towards St. Paul is 145 feet west of the first track, known as the industry track. The next track to the east, known as the packing company track, is 45 feet and 8 inches east from the industry track. The west-bound main track is 16 feet east of the packing company track. It is 13 feet from the west-bound main track to the next track east, known as the west-bound passing track, and is 65 feet from the last-mentioned track to the east-bound main track, the track on which the accident in question occurred.
The depot is located north of the highway between the west-bound passing track and the east-bound main track. A flagman's shanty is located between the same tracks, but south of the highway. The depot is 21 1/2 feet wide. The nearest edge of the depot is 24 feet west of the center line of the east-bound main track, or, in other words, the east side of the depot is about 21.6 feet from the westerly rail of the east-bound track. A portico extends from the south end of the depot to within 13 feet of the north edge of the highway, while the depot proper is 31 feet north of the north edge of the highway.
Aside from the depot building there was little, if any, obstruction of the view northerly from the crossing. This collision occurred at about 11:55 p. m. on November 29, 1921, as the bus was being driven easterly over the crossing and the train was going south; there was a fog at the time, but the witnesses differ as to the extent or density thereof.
In reference to the speed of the train, the witness La Vasseur, who was in charge of the bus, and who was in the bus near the driver at the time of the accident, testified that he saw the approaching train 100 or a 150 feet away. Practically all he could see was the headlight. He said the train was coming 40 or 45 miles per hour. Appellant contends that under the circumstances the witness was not qualified to testify to the speed of the train and cites the case of Nelson v. N. P. Ry. Co., 119 Minn. 347, 138 N. W. 419, wherein this court, in discussing the question as to whether a decedent was guilty of contributory negligence as a matter of law, said:
‘It is a well-understood fact that a person cannot, with any degree of accuracy, judge of the distance of an approaching train when the only guide is the headlight of an engine.’
This quotation relates to distance rather than speed, but this language is a mere expression of judgment as to a fact, and is not stated as a rule of law. The Nelson Case recognizes such facts must be determined by the jury. The probative value of La Vasseur's testimony was for the jury to determine. In the instant case the witness, as to speed, is corroborated by circumstances such as the fact that this is a fast train between the cities and Chicago; the effect its blow had upon the bus, its rediator being torn off and thrown 75 feet and the starting crank being found 450 feet away. Defendant's witness put the speed at from 25 to 30 miles per hour. The division superintendent of the company testified that the running time of this train between St. Paul and Hastings, a distance of 19.6 miles, was 22 minutes. This may be based on leaving time from Hastings, which would make it 21 minutes, or an average of about 53.45 miles per hour. Defendant's evidence indicated that there was an up grade of from about 3 to 5 per cent. going from St. Paul to Newport and then down grade to Hastings. We think there was evidence tending to show excessive speed, under all the circumstances, and the credibility of such evidence was for the jury. Zenner v. G. N. Ry. Co., 135 Minn. 37, 159 N. W. 1087.
[2][3] The witness La Vasseur testified that when he approached this crossing he stopped the bus near the first track, and then, for the purpose of ascertaining if any train was approaching, walked ahead to a point between the second and third tracks, to a point about 80 feet from the last track, where the collision later occurred, and there looked and listened, and, discovering no evidence of an approaching train, he then ran back to the bus and got in and caused it to proceed. He testified that he saw a headlight of an engine attached to a train standing about 100 feet south of the crossing and facing north, and, that he listened for trains and looked and did not hear any bell or whistle; that he could see nothing indicating an approaching train; that the night was very foggy; that they proceeded at about 4 miles per hour, and as they reached the last track the collision occurred. The plaintiff's claims are disputed by witnesses, leaving the controversy to be determined by the jury. The windows of the bus were frosty, and it was difficult for those in the bus to see out, and the windows were closed. The ventilator in front was open, giving a limited opportunity for vision into a night, partly, at least, dimmed by fog, and it also permitted in a limited way the hearing of noises outside.
Appellant now says that the testimony of La Vasseur to the effect that he did not hear the bell or whistle was negative only, and of no probative force against the positive evidence that is opposed to it. True that where a witness merely says that he did not hear a bell or whistle it is of little value; but, where it also appears that the witness was of normal ability to hear, and was in a position and under conditions where he would probably have heard the sound had it been made, and that he was listening to hear the sound, then it becomes of probative value. The position and situation of...
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