Strobeck v. Bren

• Decision Date: 16 December 1904
• Parties: STROBECK v. BREN et al.
• Court: Minnesota Supreme Court

93 Minn. 428

101 N.W. 795

STROBECK

v.BREN et al.

Supreme Court of Minnesota.

Dec. 16, 1904.

Appeal from District Court, Hennepin County; Frank C. Brooks, Judge.

Action by Emil Strobeck against Frank Bren and Josepha Bren. From an order sustaining a demurrer to plaintiff's complaint, he appeals. Affirmed.

Syllabus by the Court

1. The proximate cause of an injury, within the meaning of the law of negligence, is such cause as operates to produce particular consequences without the intervention of any independent or unforeseen cause or event, without which the injury could not have occurred-such consequences as might reasonably have been anticipated as likely to occur from the alleged negligent act.

2. The right of way of a railway company extended through the land of defendants. The railway company, in compliance with the statutes on the subject, fenced its right of way, and, at the instance and for the convenience of defendants, placed gates therein to enable them to pass to and from the tracts of land situated on each side of the right of way. Plaintiff occupied land adjoining defendants,' between which there was a good and sufficient fence maintained by defendants. A heavy windstorm blew down a tree standing near that fence, which fell upon and broke it down. Plaintiff's cattle, which were pastured on the land so adjoining defendants', passed through the line fence where it was so broken down by the tree, from thence through the gate in the right of way fence, which defendants had left open, onto the right of way of the railway company, and were killed by a train of cars. Held, that the failure of defendants to keep the gate of the right of way fence closed was not the proximate cause of the injury complained of, and no recovery can be had against them. R. L. Penney, for appellant.

Hicks, Carleton & Cross, for respondents.

BROWN, J.

Appeal from an order sustaining a general demurrer to plaintiff's complaint. The facts alleged in the complaint are, in short, as follows: The right of way of the Chicago, Milwaukee & St. Paul Railway Company extends over and across certain land owned by defendants, and was, some time prior to the injury to plaintiff's cattle here complained of, in compliance with the statutes on the subject, fenced by the company on each side thereof as it extends through such land. At the time the fence was built, and at the request and for the convenience of defendants, the company placed gates therein on each side between the right of way and defendants' land to enable them to pass from the tract on one side to that on the other side of the right of way. The land so owned by defendants is entirely inclosed by a good, substantial fence. Plaintiff occupied as a tenant a tract of land adjoining that of defendants on the north, between which, according to the allegations of the complaint, there existed a good and sufficient line fence, which was maintained by defendants. On the night of July 22, 1903, a large tree standing near this line fence was blown down by a heavy wind and fell upon and broke the fence, by reason of which plaintiff's cows, which were confined on the land so adjoining defendants' premises, passed through onto the land of defendants, and from there through the gate in the right of way fence, which ...