Wherry v. Duluth, M. & N. Ry. Co.
| Decision Date | 14 May 1896 |
| Citation | 64 Minn. 415,67 N.W. 223 |
| Parties | WHERRY v DULUTH, M. & N. RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. The fact that a danger is known will preclude a recovery in case of injury, where such danger is apparent and imminent, and of such a character as to impose upon one who undertakes to pass it a hazard that an ordinarily prudent man would not incur. A person has no right to cast himself upon a known danger, when the act subjects him to immediate and great peril.
2. The plaintiff approached a street crossing, and found it blocked by a freight train. It was apparent that the train was liable to start at any moment. After waiting at least 20 minutes, plaintiff attempted to cross by climbing up between the cars, some 250 feet from the engine, and was injured by the sudden backing up of the train, no signal or warning having been given. Held, under all of the facts of this case, that plaintiff was guilty of contributory negligence, as a matter of law, which would prevent a recovery.
3. That other men have attempted or performed reckless and negligent acts of a certain character cannot be allowed to justify or excuse one who attempts or performs the same reckless and negligent act.
4. Held, further, that there was no evidence which would have justified the jury in finding that the employé who backed the train knew at the time that plaintiff was in a dangerous place, or had reason to suppose that he was attempting to cross the train.
5. Held, also, that the trial court did not err when refusing to grant plaintiff's motion for a new trial on the ground of newly-discovered evidence.
Appeal from district court, St. Louis county; J. D. Ensign, Judge.
Action by Thomas Wherry against the Duluth, Missabe & Northern Railway Company. From an order dismissing the case and refusing a new trial, plaintiff appeals. Affirmed.
Geo. L. Spangler, for appellant.
Cotton, Dibell & Reynolds, for respondent.
This was an action brought to recover for injuries said to have been caused by the negligence of defendant's servants while in charge of one of its freight trains at Virginia, in this state. At this point the track ran north and south, while Chestnut street crossed it at right angles. About 5 o'clock in the afternoon of the day in question, plaintiff, on foot, approached this crossing from the west, on his way to a point easterly, a mile or two beyond the crossing, and found the train obstructing the way, the engine headed to the south. It had been at a standstill at this point for several minutes, and it was shown upon the trial that during the time defendant's trains had been running to this point (about three months) it had been the common practice to blockade this crossing with cars for 20 or 30 minutes at a time, and that, while some pedestrians went around the obstructions, others climbed over or crawled between the cars. After waiting a few minutes, standing at a distance of some 30 feet from the train, and over 250 feet from the engine, plaintiff stepped forward, and attempted to 2limb up between a flat and a box car. While engaged in so doing, the train was suddenly, and without signal or warning, it was claimed, backed up, catching, and crushing one of plaintiff's feet. When counsel rested plaintiff's case upon the trial, it was dismissed by the court, upon the ground that he was guilty of contributory negligence, and thereafter a motion for new trial was denied. The plaintiff was a man 33 years of age, fully capable of exercising due care and caution in respect to his personal safety. That the street was blockaded by the train did not warrant his attempt to pass over the cars. It might have been inconvenient for him to wait until the train moved, or to go around, a part of the way, on a street which paralleled the track, or, for the whole distance, on the right of way. That the snow was two or three feet deep, and somewhat concealed excavations on the right of way, into which he might fall, was no sufficient excuse for his adoption of an extremely hazardous and much more dangerous manner of passing the obstruction, although such obstruction was unlawful. His reason for attempting to climb over the train, instead of going around, does not relieve him of the charge of being reckless. The fact that a danger is known will preclude a recovery, in case of injury, when it is apparent and imminent, and of such a character as to impose upon one who undertakes to pass it a hazard that an ordinarily prudent man would not incur. One has no right to cast himself upon a known danger, where the act subjects him to immediate and great peril. Now the risk and peril in attempting to pass over the cars in question was easily appreciated and understood by any person of mature years. The plaintiff had seen a person in the cab of the engine, whom he supposed to be the engineer, and he had also seen a brakeman on the top of the cars. The train was headed southerly, in the only direction trains ran, for Virginia was the northern terminus of the road, and the engine stood several rods north of the depot. The crossing had been blocked for a much longer time than was permissible under the statute, and plaintiff had waited, momentarily expecting the train to start. It was apparent that it might start at any time, and, if it should, the risk and danger were open and notorious. On these facts it must be declared that there was a want of...
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