Rogstad v. St. Paul, Minneapolis & Manitoba Railway Co.
| Decision Date | 12 November 1883 |
| Citation | 17 N.W. 287,31 Minn. 208 |
| Parties | Sigurd Rogstad v. St. Paul, Minneapolis & Manitoba Railway Company |
| Court | Minnesota Supreme Court |
This action was brought in the district court for Hennepin county and tried before Koon, J., who, at the close of plaintiff's case, ordered a dismissal, but afterwards granted a new trial. From the latter order the defendant appeals.
Order reversed.
R. B Galusha and Benton & Roberts, for appellant.
Babcock & Davis, for respondent.
The rules or tests that determine whether in a given case negligence is a question of law for the court, or one of fact for the jury, have been recently stated by this court in the case of Abbett v. Chicago, Mil. & St. Paul Ry Co., 30 Minn. 482, 16 N.W. 266, and need not now be repeated.
The facts in this case, as disclosed by the evidence, are that plaintiff was assisting in the care of a car-load of his brother's cattle, which was set on a side-track of defendant's yard, in Minneapolis, to await the afternoon freight train, by which it was to be transported northward. The car had been placed there in the morning. About one o'clock in the afternoon of the same day, it became necessary to procure water for the cattle, and plaintiff went across the tracks to the engine-house, a small building on the opposite side, and, while on his return with the water was struck by a switch-engine coming from the west. At the place where he was crossing there were some six parallel railroad tracks, occupying a space, from outside to outside, as shown by the map, of some 80 feet. The cattle car was on the out side track, opposite the engine-house, and some 200 feet east of the Holden-street bridge. Hence plaintiff had to cross five tracks to get from the engine-house to the cattle car with the water. On the first track which he crossed -- that is, the outside one next the engine-house -- there were some empty cars standing a short distance west of him; but, after this track was crossed, there was no obstruction to prevent his seeing the approach of an engine either way. The ground was level, the track straight, and on the same level. How far an approaching engine could have been seen, does not clearly appear from the oral testimony, but the map shows it must have been several hundred feet. The track on which he was injured was one of the two next to the one on which the cattle car stood. Hence he had already crossed three or four tracks. While on this track he says he heard men "holler" "look out;" that he stopped, (right on the track,) turned, and looked back to the men at the elevator near the engine-house, who had "hallooed," to see what was the matter, and then turned around again, and then for the first time saw the engine, which he says was within two feet of him, and running at the rate of 15 miles an hour, and struck him before he had time to get off the track. Plaintiff was a young man of unimpaired sight and hearing. It does not appear that there was any noise or confusion to distract his attention, unless it was the men at the elevator calling to him to "look out." The place...
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