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

• Decision Date: 19 July 1894
• Parties: STRUCK v. CHICAGO, M. & ST. P. RY. CO.
• Court: Minnesota Supreme Court

58 Minn. 298

59 N.W. 1022

STRUCK

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

Supreme Court of Minnesota.

July 19, 1894.

(Syllabus by the Court.)

1. When a traveler on a highway is struck by a train at a railway crossing and killed, and there is no direct evidence to prove that he looked and listened, but there is evidence tending to prove that, if he had done so, he could not have seen the approaching train in time to avert a collision, the question of his contributory negligence is for the jury.

2. Where the crossing of a highway over a railroad is ordinarily very dangerous, and the circumstances connected with the running of the particular train make it still more dangerous, it is a question for the jury whether or not, under all the circumstances of the case, the railway company, in approaching the crossing with its train, as well as giving the statutory signals, should not, in the exercise of reasonable care, take also other precautions to avoid injury to travelers upon the highway.

Appeal from district court, Rice county; Thomas S. Buckham, Judge.

Action by Emelia F. Struck, administratrix of the estate of F. Struck, against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

H. H. Field and F. W. Root, for appellant.

H. S. Gipson, for respondent.

CANTY, J.

This is an action brought to recover damages for the negligence of the defendant resulting in the death of plaintiff's intestate. He was struck by a railroad train, while upon the highway crossing the defendant's track, driving his team and wagon. The railroad ran north and south; the highway crossed it on a grade crossing. For about 400 feet immediately north of the crossing, the railroad passes through a cut from four to five feet deep, and on the hill above this cut were snow fences. The highway approaches the crossing from the south, along the east side of the railroad right of way, through a hollow. At 290 feet south of the crossing, the highway is 10 6/10 feet below the railroad track. From that point the highway gradually rises until the crossing is reached. Just before reaching the crossing, the highway turns nearly at right angles to the west, and crosses the track. The deceased came on this highway from the south, and when on the crossing was struck by an extra train, consisting of an engine and caboose, going south at the rate of about 30 miles an hour. The deceased and another man were riding in a wood rack, and both were instantly killed. On the trial in the court below, plaintiff recovered a verdict of $2,500, and from an order denying the motion for a new trial defendant appeals.

From the evidence the jury were warranted in finding that a traveler going north on the highway, as was deceased, could not, while in this hollow, see a train approaching this crossing from the north, or until his horses were almost upon the railroad track at the crossing; that it is very difficult to hear any such train, or the signal of its approach, while the traveler is in the hollow. Deceased had formerly been a section man on this part of the road, and was well acquainted with the crossing. There appears to be no living witness who can tell whether or not deceased looked and listened before he attempted to cross the railroad track, and the evidence of no such witness was given on the trial. Under such circumstances,...