Schulz v. Chi., M. & St. P. Ry. Co.

• Decision Date: 14 May 1894
• Court: Minnesota Supreme Court
• Parties: SCHULZ v. CHICAGO, M. & ST. P. RY. CO.

57 Minn. 271

59 N.W. 192

SCHULZ

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

May 14, 1894.

(Syllabus by the Court.)

Where a section man, working on or dangerously near to the railroad track, is unaware of an approaching train, and by reason of peculiar or exceptional circumstances is not likely to discover it in time to save himself from injury, and this should be apparent to the persons managing the train if they were using reasonable care: Held, in such a case, it is the duty of such persons to give such section man reasonable warning of the approach of the train. Held, further, it was a question for the jury whether, in this case, the facts and circumstances above recited were established by the evidence, and it was error to refuse to submit the case to the jury. Held, further, that under the evidence in this case, assuming that the trains were run at a high or dangerous rate of speed, the section man assumed that risk, but not the risk of the engineer neglecting to give the signal or warning that the exceptional circumstances required him to give.

Appeal from district court, Ramsey county; Hascal R. Brill, Judge.

Action by Bertha Schulz, administratrix of Julius C. Schulz, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. The action was dismissed, and, from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Lewis E. Jones and A. T. Faber, for appellant.

W. H. Norris and F. W. Root, for respondent.

CANTY, J.

Plaintiff's intestate was in the employ of defendant as a section man on its railroad. At the time of the injury in question he was at work cutting weeds with a shovel along the side of its track within the corporate limits in the southern part of the city of St. Paul. He cut a space about six feet wide along outside of the rail, and stood in the middle of this space as he worked, in a stooping position, with his back to the approaching train of defendant, turning partly to one side and then to the other as he proceeded. Running parallel with this track, and about 100 feet away from it, was the track of another railroad company, on which a train was at the time approaching from the opposite direction. About the time the last car of this train passed by him, and as he turned partly towards the track of defendant on the side of which he was at work, the train approaching from behind him struck him on the side of the head, knocked him down, and from the injuries received he died shortly afterwards. The section man who worked across the track directly opposite him, and the other men who worked with him, testified that they heard no sounding of the whistle or ringing of the bell or other warning of the approach of defendant's train, and it is fairly to be...