Shaber St. Pual Minneapolis & Manitoba Ry. Co.

• Citation: 28 Minn. 103,9 N.W. 575
• Court: Supreme Court of Minnesota (US)
• Decision Date: 06 July 1881
• Parties: SHABER, ADM'R, ETC., v ST. PAUL, MINNEAPOLIS & MANITOBA RY. CO.

28 Minn. 103

9 N.W. 575

SHABER, ADM'R, ETC.,vST. PAUL, MINNEAPOLIS & MANITOBA RY. CO.

Supreme Court of Minnesota.

Filed July 6, 1881.

Appeal from order of district court, county of Ramsey.

John B. & W. H. Sanborn, for respondent.

R. B. Galusha and Bigelow, Flandrau & Clark, for appellant.

GILFILLAN, C. J.

Action by plaintiff, as administratrix of the estate of Henry Shaber, under section 2, c. 77, Gen. St. 1878, for causing the death of the intestate by negligence in running a railroad engine over him. The accident occurred at the place where defendant's track crosses Lafayette avenue, a public street in the city of St. Paul. At that place the track runs nearly north and south, the avenue nearly east and west. The deceased was at the time passing in the evening on foot along the avenue coming from the east, and crossing, or about to cross, defendant's track. The engine was running backwards north towards and across the avenue. There was evidence tending to show that at the crossing there was no flagman or other person to warn passers on the highway of the approach of trains or engines, nor any precaution to prevent such passers crossing the track as trains or engines were approaching; that owing to a hill and house and trees the view of the track in the direction from which the engine was coming was more or less obstructed to one passing on the avenue from the east towards the track; that the evening was dark, or rather obscure, cloudy, with a moon nearly new low in the west; that a great many trains and engines were constantly passing this particular point; that at the time a train with a bright head-light, ringing the bell, was on another track west of that on which the engine was, going south, in the direction opposite to that in which the engine which killed deceased was going, and had just passed the avenue; that such moonlight as there was cast the shadow of this train over the track on which the engine approached the crossing; that in the shadow of this train the engine approached the crossing going at the rate of from 12 to 15 miles an hour, and reached the crossing just as the train had passed; that the enginehad a bright head-light, throwing its light in the direction opposite to that in which the engine was going, but no light looking in the direction in which it was going. Its bell was ringing. The testimony of the engineer in charge of the engine indicates that he knew that owing to his engine being in the shadow of the passing train the approach of the engine made the crossing dangerous.

From this evidence the jury, if satisfied that the engine crossed the street at the rate of 12 or 15 miles an hour, without any other warning than the ringing of the bell, the sound of which might be confounded with that of the bell on the passing train, were justified in finding that there was negligence on the part of the defendant. The same circumstances which tended to show negligence on the part of defendant point out how the jury might reasonably find that there was no negligence on the part of Shaber in attempting just at the time to cross the track. There could be no ground for imputing negligence to him unless he knew of the approach of the engine, and that its nearness and rate of speed endangered his crossing, and, knowing it, he attempted to cross; or unless he attempted the crossing without taking proper care to learn, without using his senses to ascertain, if any engine, train, or car was approaching on the track so near or so rapidly as to make his attempt to cross dangerous. There are no circumstances in the case requiring the conclusion that he knew the engine was coming towards the crossing, or that he saw it at all. Nor does the fact that he attempted to cross, as it may be presumed, without seeing the engine, show that he did not look to see if anything was coming on the track; for he might have used both sight and hearing without learning of its approach. The noise of the train passing on one track might drown that of the engine on the other. The sound of the two bells ringing together might fail to call attention to the engine. The engine had no light on the end towards him. It was approaching in the shadow of the train. That he might have looked in the direction of the engine without seeing it is evident from the testimony of the fireman on the engine. He was looking towards the crossing. The engine was between 35 and 50 feet from it. Deceased was between 10 and 15 feet from it, making towards it. The train was passing the crossing. Several flat cars in the train just then passing the crossing allowed the moonlight to cover deceased so that the firemen saw him for a moment. Immediately some box cars, in the train behind the flat cars, threw deceased into the shade, so that though the fireman knew where he was, and was apparently looking towards him to see...