Peterson v. Great N. Ry. Co., 23901.
| Decision Date | 09 May 1924 |
| Docket Number | No. 23901.,23901. |
| Citation | 159 Minn. 308,199 N.W. 3 |
| Parties | PETERSON v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; Bert Fesler, Judge.
Action by Otto Peterson against the Great Northern Railway Company. Verdict for plaintiff, and, from order denying alternative motion for judgment notwithstanding verdict or for a new trial, defendant appeals. Affirmed.
Record examined in reference to collision between train and automobile at highway crossing and held:
Province of jury, on conflicting evidence, to determine whether statutory signals were given.
The question of contributory negligence was properly submitted to the jury.
The court properly permitted the jury to determine from the character of the crossing and the physical conditions surrounding it that the defendant did not perform its whole duty by merely giving the statutory signals.
The court did not submit to the jury, as an independent ground of negligence, the presence of snow fence and trees on land outside the right of way.
The general exception to the charge under the evidence is insufficient. F. G. Dorety and A. L. Janes, both of St. Paul, and Baldwin, Baldwin, Holmes & Mayall, of Duluth, for appellant.
Gannon, Strizich & Farnand, of Hibbing, for respondent.
This is an action to recover damages for personal injuries and destruction of an automobile resulting from a crossing accident. The plaintiff was given a verdict for $9,000. From an order denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial, defendant has appealed.
At the location of this crossing the railroad tracks run north and south and the highway east and west. The train was going south, and plaintiff was traveling to the east in an automobile. For about 345 feet north of the center line of the crossing the railroad passes through a cut which in its natural condition is from one to seven feet deep. At the time of the accident snow was on the ground, and at the crossing and on the right of way there were high snowbanks which tended to make an additional obstruction to the view. This snow obstruction was in part the result of defendant's acts. On the west side of the track and on top of the cut and bank, in addition to snow, there were brush, stumps, telephone poles, and a wire fence. Just to the north of the cut and on the west side of the right of way is a grove covering an area 185 feet north and south and 150 feet east and west. About 75 feet north is another grove along the westerly side of the right of way, 275 feet north and south and 200 feet east and west. The north end of this grove is 1,025 feet from the crossing. On the land to the west of the right of way there is more or less brush and small timber and some brush on the right of way along the fence. The grade is down hill from the north to the crossing. The east and west highway turns to the north at a point about 500 feet west of the crossing. From this turn, to the east, the grade is up hill to a point 100 feet from the crossing-the raise to this point being 16 feet-and then the surface is level for 70 feet, and then the last 30 feet is down hill to the crossing. On the north side of the road and parallel to it was a snow fence erected by the township. It started 35 feet from the right of way, and was 100 feet north of the center of the highway, and extended westerly about 164 feet. This fence was 5 1/2 to 6 1/2 feet high and was made of boards 8 or 10 inches wide. There is also a cut in the highway as it leads to the tracks. There was snow along the snow fence, and from the east end of the snow fence and on the right of way were high banks of snow obstructing the view to the north to such an extent, as plaintiff testifies, that when he was at a point just past the snow fence, and as he was along by the fence, he could not have seen a train approaching from the north, unless its smoke could have been seen.
At the time of the collision plaintiff did not see the train until he was so close that he could not stop, and so he tried to cross ahead of the train. The locomotive engineer did not see plaintiff until plaintiff was within 15 feet of the track, and also when the train was about 15 feet or 20 feet from the crossing. The engineer testified that he knew the crossing was a dangerous one, that he did not look to see if persons were traveling on the highway, and that snow and the snow fence obstructed the view.
This action is based on negligence, and it is claimed, (1) that defendant failed to ring the bell or sound the whistle, (2) that defendant was negligent in permitting snow to accumulate at the crossing so as to obstruct the view, and, because of the conditions, natural and artificial, defendant owed plaintiff a duty which it violated in failing to take proper precautions to protect plaintiff.
[1] If defendant failed to give the usual signal in approaching the highway crossing (section 8776, G. S. 1913) it would be guilty of negligence. There is evidence in this case on both sides in support of their respective claims. It was conflicting. It was clearly a question for the jury to determine. Their conclusion in that respect cannot be disturbed. Hendrickson v. G. N. Ry., 49 Minn. 245, 51 N. W. 1044,16 L. R. A. 261, 32 Am. St. Rep. 540;Zenner v. G. N. Ry. Co., 135 Minn. 37, 159 N. W. 1087;Jenkins v. M., St. L. Ry. Co., 124 Minn. 368, 145 N. W. 40.
[2] The matter of contributory negligence in this case was also for the consideration of the jury. It does not conclusively appear that the colliding train must have been visible from the point where the traveler should have looked. The engineer seemingly could not see the automobile which plaintiff was driving, and he had substantially the same opportunity to see it as plaintiff did to see the train. Reasonable men might readily differ as to what the facts were in reference to this phase of the case. The evidence warrants a finding that plaintiff exercised such precaution as a reasonably prudent man would have exercised under similar circumstances, and his contributory negligence was a question of fact, which was properly submitted to the jury, and decided by it adversely to defendant.
The most serious question presented by the appellant arises out of the charge of the court in reference to the second claim of negligence presented by plaintiff. The court instructed the jury as to the law applicable to the alleged failure to give the statutory signal for the crossing, and then said:
‘Now, with respect to the other point, as to the condition of the land, the lay of the land along the line of the east and west road from what we have referred to as the ‘corner’ up to the railroad track, over to the left as far as the railroad track, what was the condition of things there on March the 6th, on this afternoon? That is the time that you must consider. * * * What was the lay of the land? How much of a cut was there along the railroad track? How much of a cut was there along the highway? How were the trees? Where was the snow fence? Where was the brush? How much snow was there? How much snowbank? Was it snowing at that time? If so, to what extent? To a person that is in plaintiff's position along that road, what could he have seen if he had looked? What could he have heard if he had listened? And a person coming down on that engine, because the engineer is the only one of the crew that is important now to consider, what could he have seen if he had looked? What was there in the line of his vision? What were the facts with respect to all of these matters? * * *
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