Tegels v. Great Northern Railway Co.
| Decision Date | 13 December 1912 |
| Docket Number | 17,858 - (89) |
| Parties | JOHN TEGELS v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Lyon county by the administrator of the estate of Stephen Tegels, deceased, to recover $5,200 for the death of his intestate. The answer admitted that one of defendant's locomotives struck Stephen Tegels with such force and violence that he died shortly after, and alleged that his death was due to his own negligence. The reply was a general denial. The case was tried before Olsen, J., and a jury which returned a verdict in favor of plaintiff for $3,250. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Question for jury.
Evidence in an action for the death of a pedestrian at a railway crossing, considered, and held sufficient to take the case to the jury upon the question as to whether the defendant's employees in charge of its train were guilty of negligence in failing to give the necessary and statutory signals.
Failure to produce witness.
The jury, in such action, had the right to consider the defendant's failure to produce as a witness the fireman of the engine which struck the deceased, in determining the truth of the engineer's testimony that he signaled by whistle and that the fireman rang the bell.
Contributory negligence -- question for jury.
It appearing, in such action, that the accident occurred at night, and that the view in the direction from which the train approached was somewhat obstructed by buildings, and there being evidence tending to show that the night was hazy that the headlight of the engine was dim, that the train was running fast and made little noise, and that no signals were given for the crossing, the question of contributory negligence on the part of the deceased was for the jury, especially in view of the presumption of due care on the part of a deceased person killed by the negligence of another.
Damages not excessive.
Verdict for $3,250 sustained.
Winsor & Keith and M. L. Countryman, for appellant.
Tom Davis, Ernest A. Michel and D. L. Kennedy, for respondent.
Green Valley is a flag station on the defendant's line of railway. At about two o'clock in the morning of November 16, 1910, the deceased, who had been attending a dance in Green Valley, together with five other young men, left the dance hall and proceeded, on foot, towards the place where they had left their horses and vehicles, which was on the opposite and west side of the railroad track from the place where the dance was held, and near a crossing about 100 feet south of the station, where the track was intersected by a highway running east and west. Their course was diagonal from the dance hall, in a northwesterly direction, to a point on the above-mentioned highway about 200 feet from the hall, which distance they ran. From this point they proceeded to walk westerly to a point on the east side of the track near the crossing. The track at this point runs almost north and south, and is straight and practically level for a long distance south of the highway; but to the south and on the east side of the track are the defendant's water tank, depot, and outhouse. The night was "kind of hazy." The deceased, plaintiff's son and intestate, while crossing the track upon the highway at the aforesaid crossing, was struck and killed by an engine, pulling a passenger train, which approached from the south. This action is for the recovery of damages for the death of the plaintiff's son and intestate, caused as above stated. The plaintiff had a verdict, and this is an appeal by the defendant from an order denying its alternative motion for judgment or for a new trial.
1. The defendant claims that there was no evidence of any negligence on its part. The plaintiff's contention in this regard is (1) that the train which struck the plaintiff's son was running at a dangerous rate of speed; (2) that the engine had an insufficient headlight; and (3) that no warning was given of the train's approach to the crossing, either by sounding of whistle or ringing of bell, or otherwise.
The first and second grounds of negligence thus urged cannot be considered on this branch of the case, for the complaint in the action alleges merely that the defendant was guilty of negligence in the operation of its train generally, and the court, in its charge, limited the plaintiff's claim as to the defendant's negligence solely to the alleged failure to give the statutory signals, thus rendering claims not so submitted immaterial.
As to the claim that the necessary and statutory signals were not given,...
To continue reading
Request your trial