Schneider v. N. Pac. Ry. Co.

• Decision Date: 16 November 1900
• Parties: SCHNEIDER v. NORTHERN PAC. RY. CO.
• Court: Minnesota Supreme Court

81 Minn. 383

84 N.W. 124

SCHNEIDER

v.NORTHERN PAC. RY. CO.

Supreme Court of Minnesota.

Nov. 16, 1900.

Appeal from district court, Hennepin county; Charles M. Pond, Judge.

Action by Martin Schneider, administrator of Martin Schneider, deceased, against the Northern Pacific Railway Company. Action dismissed. From an order denying a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

1. A pedestrian passing over a street at a city railway crossing is not relieved from the use of any of his faculties to discover danger, and it is his duty, if he is unable to hear warning signals, to use his eyesight, if that sense would disclose such danger; and a failure to do so must be held to display want of ordinary care on his part.

2. Neglect to take notice of an approaching engine on a steam railway track a person is about to cross, which could have been seen before going upon the same, cannot be excused by the failure of the railway company to comply with an ordinance requiring the maintenance of gates and a flagman at that place.

3. Held, upon the evidence, that the trial court properly directed a dismissal of the case upon the conclusion of plaintiff's testimony. F. J. Geist and M. C. Brady, for appellant.

C. H. Bunn, L. T. Chamberlain, and James B. Kerr, for respondent.

LOVELY, J.

Plaintiff's intestate, Martin Schneider, while walking over defendant's tracks at a street crossing in Minneapolis, was struck by one of defendant's engines, and received such injuries therefrom that he died. His administrator brings this action to recover for the death of his intestate, upon the alleged neglect of defendant to maintain proper safeguards at the crossing, as well as for the negligent operation of the engine inflicting the injury. Three railroad tracks cross Nineteenth street, running north and south parallel to East First street, to which they are adjacent. On the highway from Nineteenth street over First street going west there is an ordinary grade crossing, at which defendant was required by the ordinance of the city to maintain suitable gates, as well as a flagman to attend them, which ordinance had never been complied with. The day previous to the accident, defendant had placed several box cars on the east track. These cars extended into Nineteenth street on either side, leaving a space of 9 feet for passage of travelers. The distance between this track and the second track west was 8 feet and 10 inches, in the clear. The sides of the box cars referred to extended into this space 23 inches, so that the distance between the cars and the second track was 6 feet and 11 inches. After passing the box cars going west, a pedestrian would have an unobstructed view towards the south within this space of at least three blocks. The deceased was an aged man, 74 years old, presumably of fair average intelligence, possessed of good eyesight and excellent hearing. It does not appear that he was familiar with the crossing, or that he had passed over it previously, although he had often used other crossings in the same vicinity, where there were gates and flagmen. On the occasion of the injury, which was in the daytime, he left First street to go west over that street through the opening between the box cars, and continued upon the highway until he reached the middle of the second track, where one of defendant's engines coming from the south ran upon him. He was thrown between the tracks, the engine stopping by the time it covered his body. It was then backed, he was picked up unconscious, and died soon after. The facts show also that there was a boiler shop in the locality, from which there issued considerable noise, that might easily have prevented the deceased from hearing the approaching engine. It does not appear that the engine bell was rung, although the whistle was sounded immediately previous to the collision, but for the purpose of this case it may be conceded that neither of these warnings would have been of avail. The facts above stated were conclusively established at the trial when plaintiff rested. The defendant then moved to dismiss the action, which motion was granted. Subsequently there was an order denying a new trial, from which the plaintiff appeals.

It is not an open question upon this appeal that defendant was negligent in its failure to maintain suitable gates and flagmen at the crossing as required by the city ordinance; but it is claimed, as a matter of law, that plaintif...