Perkins v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 08 February 1924
• Docket Number: No. 23,762.,23,762.
• Court: Minnesota Supreme Court
• Parties: PAUL W. PERKINS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>

Page 184

158 Minn. 184

PAUL W. PERKINS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.¹

No. 23,762.

Supreme Court of Minnesota.

February 8, 1924.

Action in the district court for Pine county to recover $3,000 for damages to an automobile bus caused by negligent management of defendant's train. The case was tried before Searles, J. who denied defendant's motions for a directed verdict, and a jury which

returned a verdict for $1,975. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

F. W. Root, C. O. Newcomb and A. C. Erdall, for appellant.

Hurley & Hurley, for respondent.

WILSON, C. J.

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, Minnesota. 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 a 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 railway 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 track but south of the highway. The depot is 21½ 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 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. Northern Pacific 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 [at page 350]: "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 radiator 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 upgrade of from about 3 to 5 percent going from St. Paul to Newport and then downgrade 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. Great Northern Ry. Co. 135 Minn. 37, 159 N. W. 1087.

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, part 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 the witness, the attention he was giving, and the credibility and weight of his evidence, are questions for the jury. Such evidence, while negative in form, is affirmative in substance. There is no inherent weakness in this kind of knowledge. Cotton v. Willmar & S. F. Ry. Co. 99 Minn. 366, 109 N. W. 835, 8 L. R. A. (N. S.) 643, 116 Am. St. 422, 9 Ann. Cas. 935; Cornell v. Great Northern Ry. Co. 112 Minn. 341, 128 N. W. 22; Zenner v. Great Northern Ry. Co. 135 Minn. 37, 159 N. W. 1087; Willett v. Great Northern Ry. Co. 154 Minn. 10, 191 N. W. 260.

The rule is stated in Cotton v. Willmar & S. F. Ry. Co. supra , thus:

"The allegation being that the ball was not rung it was competent to prove the negative fact by the testimony of competent witnesses who were so situated that they might, and probably would, have heard the sound had the bell been rung. The plaintiff alleged, and was required to prove, that the bell did not ring. The fact in issue was whether at a certain time and place certain sounds were produced. Silence is as much a fact as sound and the proof of one disproves the other. If a witness heard a sound the necessary implication is that he was where he could hear the sound, but the fact that a witness did not hear a sound carries with it no such implication. Therefore when it is sought to prove the nonexistence of sound by the testimony of witnesses the conditions essential to the competency of the evidence must be supplied. The probative value to be given to the fact that a witness did not hear the sound depends upon the condition of his senses, his proximity to the place, the degree of attention, and other such circumstances which render it more or...