Woehrle v. Minn. Transfer Ry. Co.

• Decision Date: 04 January 1901
• Citation: 84 N.W. 791,82 Minn. 165
• Parties: WOEHRLE v. MINNESOTA TRANSFER RY. CO.
• Court: Minnesota Supreme Court

82 Minn. 165

84 N.W. 791

WOEHRLE

v.MINNESOTA TRANSFER RY. CO.¹

Supreme Court of Minnesota.

Jan. 4, 1901.

Appeal from district court, Hennepin county; J. F. McGee, Judge.

Action by Charles Woehrle against the Minnesota Transfer Railway Company. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Lewis and Collins, JJ., dissenting.

Syllabus by the Court

1. The rule that it is the duty of a traveler on the highway, about to go upon a railway crossing, to look and listen, to the extent of his opportunity, for an approaching train, is not always an absolute one. While he cannot omit to exercise due care in so looking and listening, in reliance upon the railway company doing its duty as to giving signals, yet under special circumstances he may regulate his own conduct in some degree with reference to the presumption that it will do its duty.

2. Where it is the custom of a railway company to keep gates or a flagman at a dangerous crossing, the raised gates or the absence of the flagman, to a traveler to whom the custom is known, is an assurance of safety, and an implied invitation to make the crossing, upon which he may to some extent, but not entirely, rely and act, within reasonable limitations, upon the presumption that it is safe for him to go upon the crossing. The extent to which he may rely on such assurance is a question of fact, unless it conclusively appears that he relied exclusively thereon.

3. Rules applied, and held that the question of the plaintiff's contributory negligence was one of fact, and that the trial court erred in not submitting it to the jury. L. J. Van Fossen and Hendrix & Merritt, for appellant.

W. H. Norris and F. W. Root, for respondent.

START, C. J.

The plaintiff on the 10th day of January, 1900, while crossing the railway track of the defendant on a public highway in the town of Rose, this state, was injured by his wagon being struck by a passing engine, with car attached. This action was brought to recover the damages the plaintiff sustained by reason of such injuries, and at the close of the evidence the court, on motion of the defendant, instructed the jury to return a verdict for the defendant, and the plaintiff appealed from an order denying his motion for a new trial.

The alleged negligence on the part of the defendant consisted in driving its engine across the highway without giving any signal of its approach, and in failing to have a flagman stationed at the crossing to warn travelers on the highway of the approach of the engine. It is here conceded that the evidence was sufficient to take the case to the jury on the question of the defendant's negligence, but it is urged that the trial court correctly directed a verdict on the ground that the plaintiff was guilty of contributory negligence. Does the uncontradicted evidence conclusively show, as a matter of law, that the plaintiff was guilty of negligence which contributed directly to his injury? This question is to be determined by an attentive consideration of the special facts which the evidence tends to establish, and in so doing we must, if there is any fair doubt as to what the evidence tends to prove, or as to the inferences to be drawn from the admitted facts, accept that view of them which is most favorable to the plaintiff. Whatever facts the evidence on the part of the plaintiff tends to show must, for the purpose of this appeal, be assumed as the facts in this case, although the weight of the evidence may be to the contrary. Upon this hypothesis, the here material facts of this case are these: The defendant's railway at the locus in quo runs approximately north and south. From the point where the railway and the highway intersect, the former extends for 1,000 feet through a cut, which 100 feet north of the crossing is 13 feet deep. The highway at the crossing runs at an angle with the track of the railroad, northeast and southwest, and is downhill for about 40 rods. Intervening between the wagon road and the railroad all the way down the hill there are trees and brush, and a bank of earth on the north side of the highway, near the crossing. The first point that an engine on the track, coming from the north, can be seen from the road northeast of the crossing, is at a place about 5 or 6 feet wide, 150 feet from the crossing, at which point the engine can be seen 150 feet away. The next point where the engine can be seen from the road is 25 feet east of the crossing, where it can be seen 30 feet up the track, and at 15 feet from the rails it can be seen 200 feet away. The length of the tongue and box of the wagon in which the plaintiff was riding when the collision occurred is 21 feet. The crossing is a dangerous one, and so recognized by the defendant, and for years before the accident in question it had continuously kept a flagman there to warn the public of the approach of the trains. It was the custom of the flagman to be always in sight at the crossing, with a red flag in his hand, whenever an engine was approaching, but when none was coming he was always out of sight; that is, his absence was a signal of safety. The plaintiff was 27 years old and in the possession of all of his faculties, had lived in the vicinity of the crossing for about 9 years, and was entirely familiar with it and its surroundings; also, with the custom of the flagman to be always in sight at the crossing when a train was approaching, and to be out of sight when none was coming and it was safe for travelers to cross. It had been thawing the day before the accident, but the night before the ground froze up, and the wagon road was very rough. The plaintiff was driving a span of horses hitched to a lumber wagon, with a double box and extra side boards. He drove at a walk all the way (as the road was so rough he could not do otherwise) down the hill towards the crossing, standing up in the middle of the wagon box. The wagon made more noise than usual. His testimony on this point (and he was the only person present) was this: ‘Q. You had an empty wagon? A. Yes, sir. Q. So that the wagon, then, on that morning, with the loose boards on top there,-side boards on top, and the box empty, and that very rough road,-would make more noise than usual? A. Yes, sir; it would, because it was rough. Q. I presume you never drove over there before with your wagon making as much noise as it did at that time? A. I could not recollect it very well.’ As he drove down the hill he looked, as best he could, for the approach of the train, as he was always accustomed to do when nearing a crossing, but he did not stop his team and listen before attempting to cross. He did, however, before doing so, look for the flagman, and he was not in sight; and, hearing no bell or whistle,-the wind was northeast,-he kept on his way, and when his horses were stepping over the first rail he saw the engine coming, about 150 feet away. His team was frightened, and he whipped them up, as he did not know of any other way to save himself, except to get across the track if possible. The engine was then running about 18 miles an hour, or about three times as fast as he came down the hill, and struck the wagon about the middle of the hind wheel, breaking the wagon in pieces and throwing the plaintiff therefrom, whereby he was seriously injured. The plaintiff knew that the train usually passed the crossing at about the hour of the morning that the accident happened.

It is obvious from these facts that this case is not one where the plaintiff went upon the crossing relying implicitly upon the fact that the flagman was absent, and without looking for the approach of the engine or exercising any care in the premises. Upon the question whether the plaintiff could have seen the train in time to have avoided the accident, or whether he looked for it, the evidence was conflicting, and sufficient to warrant the submission of the question to the jury. The sole question, then, for our decision is whether, in view of the facts of this case, the plaintiff, in the exercise of ordinary care, was bound, as a matter of law to stop his team and listen before driving upon the crossing. Are the inferences to be drawn from the facts doubtful? Is there no reasonable chance for fair-minded men to draw different conclusions from them? Unless it be clear that the last two questions must be answered in the negative, the main question must also receive a negative answer. Abbott v. Railway Co., 30 Minn. 482, 16 N. W. 266. The rule that it is the duty of a traveler on the highway, about to go upon a railway crossing, to look...