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

• Decision Date: 08 February 1918
• Docket Number: No. 20660.,20660.
• Citation: 166 N.W. 342,139 Minn. 288
• Court: Minnesota Supreme Court
• Parties: WILLETT v. CHICAGO, M. & ST. P. RY. CO. et al.

139 Minn. 288

166 N.W. 342

WILLETT

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

No. 20660.

Supreme Court of Minnesota.

Feb. 8, 1918.

Appeal from District Court, Ramsey County; J. C. Michael, Judge.

Action by Frank Willett against the Chicago, Milwaukee & St. Paul Railway Company and others. Verdict for plaintiff, and from an order denying a motion in the alternative for judgment notwithstanding the verdict or for a new trial, defendants appeal. Order reversed, and judgment for defendants ordered.

Syllabus by the Court

Evidence examined, and held insufficient to show willful negligence. F. W. Root and Nelson J. Wilcox, both of Minneapolis, for appellants.

Barton & Kay, of St. Paul, for respondent.

BUNN, J.

This case is before the court on the appeal of defendants from an order denying their motion in the alternative for judgment notwithstanding the verdict for plaintiff, or for a new trial.

Plaintiff, a young man 18 years of age, had attended a dance at La Crescent, Minn., on the evening of September 22, 1916. At about 4 o'clock in the morning of the 23d, while he was on his way to his home in North La Crosse, by way of defendant railway company's bridges between River Junction on the Minnesota side of the Mississippi and North La Crosse on the Wisconsin side, he was struck by an engine coming from the west, hauling a freight train of some 13 cars.

There are four bridges between River Junction, or bridge switch on the Minnesota side of the river, and North La Crosse; they are from west to east as follows: A bridge over the west channel of the Mississippi, one over the east channel, one over French slough, and one over the Black river. Defendant operates but a single track across these bridges. The bridges and trestles between them are not wide enough to accommodate a train and foot passengers at the same time. Warnings were posted conspicuously on the right of way. Over 50 trains a day crossed the bridges on this track. It is entirely clear that plaintiff's attempt to reach his home by the route he took was an extremely hazardous one. It is rightly conceded that he was a trespasser. But of course notwithstanding his negligence, and in spite of his being a trespasser, he may still have just ground for complaint if the engineer failed to use due care to avoid running him down, after seeing him on the track ahead.

Plaintiff's right to recover was made by the trial court to depend entirely on whether the engineer, codefendant in this case, was guilty of so-called ‘willful’ negligence, and it is admitted that the verdict can be sustained on no theory other than that the evidence justified a finding that the engineer, after seeing plaintiff on the track ahead in a position of peril, failed to use ordinary care to avoid striking him. Defendants claim that there was no evidence which warranted the submission of this issue to the jury, or at least that the verdict is so against the weight of the evidence that it was error to refuse a new trial.

The vital points in the inquiry to ascertain if there was evidence of willful negligence are as to the distance of plaintiff from the engine at the time the engineer first saw him, and as to what the engineer did to avoid the accident. The witnesses whose testimony bear upon these points are plaintiff, the engineer, the fireman, and the head brakeman. Plaintiff testified that he was about the center of the bridge across French slough when he heard an engine whistle behind him; that he looked back and saw the headlight of the engine just coming into view around a curve; that he waved his hat; that there was then a short blast of the engine whistle; that he then ran in an effort to escape; he was...