Phelps v. Winona & St. Peter R. Co.

• Decision Date: 30 November 1887
• Citation: 37 Minn. 485
• Parties: ELSPA P. PHELPS, Administratrix, <I>vs.</I> WINONA & ST. PETER RAILROAD COMPANY.
• Court: Minnesota Supreme Court

37 Minn. 485

ELSPA P. PHELPS, Administratrix, vs. WINONA & ST. PETER RAILROAD COMPANY.

Supreme Court of Minnesota.

November 30, 1887.

Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, refusing a new trial, after a verdict of $5,000 for plaintiff.

Wilson & Bowers, for appellant.

B. S. Lewis, for respondent.

MITCHELL, J.

Action for damages resulting from defendant's negligence causing the death of plaintiff's intestate. The negligence charged was throwing snow from the railroad track upon the highway at a crossing, the bank formed by which on one side was highest at the south end, and on the other side highest at the north end, thus rendering the highway impassable on the usual travelled track, and compelling travellers to enter the cut at the end where the bank was lowest on that side, and then follow the railroad track to a point at which they could get out on the opposite side; that this state of things had, to the knowledge of defendant, continued for several weeks, without its removing the obstruction; that while deceased, travelling the highway with a team, was on the railroad track making the crossing in the manner indicated, defendant's train, running at a very high rate of speed, and without any whistle being blown, or bell rung, to warn the travellers at the crossing, ran over and killed him. The defendant, as its first defence, denied negligence on its part, and alleged contributory negligence on part of the deceased.

1. Defendant's first, third, and fourth assignments of error are the admission of evidence tending to show the unsafe and impassable condition of the highway for some days prior to the accident, and the difficulties experienced by other travellers in attempting to make the crossing. There was evidence tending to show that the highway was in substantially the same condition during this time as on the day of the accident, except that the obstruction was increased by additional snow being thrown out from the railroad track. As to the materiality and competency of this evidence there is no room for doubt. It was admissible both to prove the unsafe condition of the highway, and also that this had continued so long as to charge defendant with knowledge of the fact, and with negligence in not removing the obstruction. These matters were in issue under the pleadings, and also, as appears from the bill of exceptions, under the evidence. The defendant especially complains, in this connection, of the fact that the witness Barber was permitted to testify somewhat in detail of the difficulties which he experienced in attempting to cross on the morning of the day of the accident, and also on the day previous, describing what he did, and the efforts he made to get across with his team. Proof of the fact that other persons were unable to cross, and of the efforts they made to do so, was competent for the purpose of showing the obstructed and unsafe condition of the highway. It is analogous in principle to cases where evidence of similar accidents is admitted to show that the common course was in an unsafe condition. It is the practical test of common experience, often the most satisfactory evidence. Phelps v. City of Mankato, 23 Minn. 276; Kelly v. Southern Minn. Ry. Co., 28 Minn. 98, (9 N. W. Rep. 588;) Morse v. Minn. & St. Louis Ry. Co., 30 Minn. 465, 471, (16 N. W. Rep. 358;) Kolsti v. Minn. & St. Louis Ry. Co., 32 Minn. 133, (19 N. W. Rep. 655;) Darling v. Westmoreland, 52 N. H. 401; Kent v. Town of Lincoln, 32 Vt. 591.

2. The fourth assignment of error is that plaintiff was allowed to ask a witness what the deceased was making the journey for; his answer being that it was to get some medicine for his wife. Whether material or not, we do not see that defendant could have been prejudiced by this evidence. The presumption is that he was travelling the highway for a proper purpose. There is nothing in the record to indicate that there was any question of fact at issue under the evidence upon which this testimony could have had any effect prejudicial to the defendant.

3. The fifth, sixth, and seventh assignments of error are the admission of certain evidence tending to show what property the deceased had when he came to the state some 20 years before, what occupation he had followed, how much he had accumulated, and what he was worth at the time of his death. This was clearly admissible for the purpose of showing the reasonable expectation of pecuniary benefit to his family from the continuance of life. Shaber v. St. Paul, M. & M. Ry. Co., 28 Minn. 103, (9 N. W. Rep. 575;) Opsahl v. Judd, 30 Minn. 126, (14 N. W. Rep. 575.) To prove what a man is worth, as in the somewhat analogous case of proving his solvency or insolvency, it is not necessary to produce the title papers for his property or the records of conveyances to him. Any person who is conversant with the facts, and who has knowledge of the existence and ownership of his property, may testify. One who managed the settlement of his estate after his death, and in that way acquired knowledge as to what property he had, and what he owed, may testify as to those facts. The fact that he acquired this knowledge, in whole or in part, from proceedings had in the probate court in the settlement of the estate, does not make his evidence secondary in its nature. All the witnesses interrogated on this subject had more or less personal knowledge of the deceased's property and pecuniary affairs, and hence were qualified to testify. The point made that the witness Murphy testified merely as to what deceased told him, is not borne out by the record. His...