Thompson v. Chi. G. W. Ry. Co.

• Decision Date: 07 February 1896
• Citation: 66 N.W. 265,64 Minn. 159
• Parties: THOMPSON v CHICAGO G. W. RY. CO. ET AL.
• Court: Minnesota Supreme Court

64 Minn. 159

66 N.W. 265

THOMPSONvCHICAGO G. W. RY. CO. ET AL.

Supreme Court of Minnesota.

Feb. 7, 1896.

(Syllabus by the Court.)

In an action brought by a locomotive fireman to recover for personal injuries received in a collision between trains at a railway crossing, there was evidence which would have warranted the jury in finding that plaintiff was guilty of contributory negligence. Held, that a portion of the charge to the jury was erroneous, because it allowed the plaintiff to be excused from the consequences of his own negligence directly contributing to the injuries received.

Appeal from district court, Mower county; John Whytock, Judge.

Action by Barney Thompson against the Chicago Great Western Railway Company and others. Verdict for plaintiff. From an order denying a new trial, the Chicago, St. Paul & Kansas City Railway Company appeals. Reversed.

Dan W. Lawler and French & Wright, for appellant.

John A. Lovely and S. D. Catherwood, for respondent.

COLLINS, J.

Action to recover for personal injuries received in a collision between a passenger train operated by defendant Chicago, Kansas City & St. Paul Railway Company and a freight operated by defendant Chicago, Milwaukee & St. Paul Railway Company, being the same collision in controversy in an action between these corporations considered by this court and reported in 56 Minn. 406, 57 N. W. 943. This plaintiff was fireman on the freight locomotive at the time of the disaster. The verdict in his favor was solely against the Kansas City road, and it appeals from an order denying a new trial if the plaintiff should consent to a certain reduction of the verdict, which he has done. As we regard the case, but one point needs consideration, and that relates to a part of the charge given by the court and duly excepted to by appellant's counsel. There was evidence presented from which the jury might have found that plaintiff himself was guilty of such negligence as would prevent a recovery, by failing to watch for the coming of a train on appellant's road as his own train approached the crossing. But, notwithstanding this, the court charged, at the request of plaintiff's counsel, that, “even if the jury found that the plaintiff, Thompson, should, under the circumstances, have continued to watch the train of the Kansas City road, and was wanting in care in that respect, yet his contributory negligence would not exculpate the Kansas City Company, and disentitle him, the said plaintiff, from recovery of said company, if it be shown that such defendant might, by the exercise of reasonable care and prudence on the part of its engineer, after passing the stop board on its road, have avoided, by such exercise of ordinary care, the consequence of the plaintiff's negligence.” The court then, of its own motion, added, “That is, notwithstanding, if the plaintiff himself was somewhat negligent, which...