Setosky v. Duluth, S. S. & A. Ry. Co.
| Decision Date | 25 November 1927 |
| Docket Number | No. 26195.,26195. |
| Citation | 173 Minn. 7,216 N.W. 245 |
| Court | Minnesota Supreme Court |
| Parties | SETOSKY v. DULUTH, S. S. & A. RY. CO. |
Appeal from District Court, St. Louis County; Bert Fesler, Judge.
Action by Walter K. Setosky, special administrator. etc., against the Duluth, South Shore & Atlantic Railway Company. Verdict for plaintiff. From an order denying its alternative motion for judgment or a new trial, defendant appeals. Order affirmed.
Abbott, MacPherran, Dancer, Gilbert & Doan, of Duluth, and Powell & Sprowls, of Superior, Wis., for appellant.
Humphrey Barton, of St. Paul, for respondent.
Action to recover damages for the death of the plaintiff's intestate in a collision between a school bus in which he was riding and a railway train of the defendant. There was a verdict for the plaintiff, and defendant appealed from an order denying its alternative motion for judgment or a new trial.
The accident occurred in Wisconsin. About 4 o'clock in the afternoon of November 10, 1926, plaintiff's intestate was going home from school in the school bus. The bus and a train of the defendant collided at a highway crossing and he was killed. The court charged that the driver of the bus was negligent. There was a verdict for the plaintiff.
The questions are: (1) Whether the defendant rang the bell as required by the Wisconsin statute; (2) whether the defendant negligently failed to keep a proper lookout as it approached the crossing; (3) whether the negligence of the driver of an auto was an intervening cause and the defendant's negligence not the proximate cause of the collision; and (4) whether the verdict is excessive.
1. The defendant's railroad at the place of the injury runs east and west. A public highway intersects at Winneboujou parctically at right angles. Winneboujou is a flag station. The statute of Wisconsin requires the bell to be rung continuously for a distance of 80 rods before reaching a crossing. The train, consisting of engine, tender, baggage car and two coaches, was coming from the east at about 20 miles an hour. The auto was on the highway going south.
The driver says the bell did not ring. Two men were working on the highway on a telphone line a few hundred feet south. They were interested in the passing of the train, since they were to string wires across the track after it had passed. They did not hear it. One of them heard the bell ring after the collision. There was positive evidence that it did ring. The testimony of the engineer and the fireman is that the bell was rung. Several of the trainmen, the conductor, brakeman and mail clerk, were listening for the crossing whistle and heard it. They did not testify whether they heard the bell. The baggageman heard the crossing whistle, but did not hear the bell. The section foreman heard the the whistle, but did not testify that the bell was rung. One of the section men testified to hearing the bell after the collision, as also did one of the men working on the telephone line.
The evidence made a case for the jury Fink v. Northern P. Ry. Co., 162 Minn. 365, 203 N. W. 47, where our cases are collected. And see Jurkovic v. Chicago, etc., R. Co., 166 Wis. 266, 164 N. W. 993; Kaufmann v. Chicago, etc., R. Co., 164 Wis. 359, 159 N. W. 552, 1067. It is not important that we would not make such a finding as the jury made. Neither the trial court nor this court is the tribunal to determine the fact.
2. Whether a proper lookout was maintained was for the jury.
For 1,000 feet easterly of the crossing the track was straight and the engineer had a limited view of the crossing. The evidence is not entirely clear as to the scope of his vision. The driver of the auto...
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