Zenner v. Great N. Ry. Co.

• Decision Date: 01 December 1916
• Docket Number: No. 20059[175].,20059[175].
• Citation: 159 N.W. 1087,135 Minn. 37
• Parties: ZENNER v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

135 Minn. 37

159 N.W. 1087

ZENNER

v.GREAT NORTHERN RY. CO.

No. 20059[175].

Supreme Court of Minnesota.

Dec. 1, 1916.

Appeal from District Court, Stearns County; John A. Roeser, Judge.

Action by Mathias Zenner, as administrator, against the Great Northern Railway Company. From an adverse order, defendant appeals. Affirmed.

Syllabus by the Court

A person approaching a train who sees it when it is 60 feet away, if otherwise qualified, is competent to give evidence as to its speed.

There is evidence from which the jury might find that the train which caused a collision in this case approached without ringing a bell.

The court may, under proper circumstances, submit to the jury the question whether ordinary care requires that a railroad company, when approaching a busy city street crossing, should take some further precaution for the protection of the public than the giving of the usual crossing whistle and the ringing of the engine bell, and whether ordinary care requires that the company maintain gates, a flagman, a system of automatic bells, or some other appliance to warn travelers of the approach of the train, although no statute or ordinance has required any of those particular precautions.

Deceased was a gratuitous passenger in an automobile which came into collision with a train. It is not plain that he could have done anything to avoid the collision, and it cannot be held that he was negligent as a matter of law.

$4,585 as damages for death of a farmer sixty-one years old, who left a daughter thirteen and a son twenty years of age, and four married sons and daughters, is not excessive. Children not presently dependent may be taken into account in assessment of damages. M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

J. D. Sullivan and H. H. Sullivan, both of St. Cloud, for respondent.

HALLAM, J.

Stephen Zenner, riding in the front seat of an automobile driven by the owner, his son-in-law, Joseph Pohl, was killed by collision with one of defendant's trains at a crossing in the city of St. Cloud. Plaintiff sued for damages and recovered a verdict. Defendant appeals.

Plaintiff claims negligence in operating the train at an excessive rate of speed, without ringing the bell, and that the crossing was such as to require either gates, a watchman or automatic crossing signals. Defendant denies negligence, alleges contributory negligence, and claims the damages allowed are excessive.

1. Three surviving occupants of the automobile testified that the train approached at a speed of from 20 to 25 miles an hour. None of them saw the train until it was within 60 feet from the place of collision. Defendant's contention is that this evidence is without probative effect and is not sufficient to sustain a finding that the speed of the train was as they state. With this we cannot agree. There is no question that the witnesses were competent to give an estimate as to the speed of the train if they had sufficient opportunity to observe its movement. We cannot say that they had not. The case is different from Beecroft v. G. N. Ry. Co., 158 N. W. 800. There the only witness as to speed was the plaintiff who was injured and who did not see the train at all until the moment that he was struck. We think the evidence in this case is sufficient to sustain a finding that the train was traveling at a negligent rate of speed.

[2] 2. The claim of plaintiff is that as the train approached the bell was not ringing. If this was the fact, the omission was doubtless negligence. The only evidence that the bell was not rung was that of the surviving occupants of the automobile. Their evidence is not, as defendant claims, merely to the effect that they did not hear the bell. One at least testified positively that the bell did not ring. The others testified they did not hear it ring, and that they were so situated that they would have heard it had it been rung. There is sufficient evidence that the bell did not ring. Cotton v. Willmar & S. F. Ry. Co., 99 Minn. 366, 109 N. W. 835,8 L. R. A. (N. S.) 643, 116 Am. St. Rep. 422,9 Ann. Cas. 935.

[3] 3. The court submitted to the jury the question whether ordinary care required the maintenance at this crossing of gates, or a flagman, or a system of electric bells or other appliances, to warn travelers upon the street of the approach of trains, and permitted them to find that the absence of any such precautions was negligence. Defendant argues that in the absence of a statute requiring railroad companies to install gates or automatic signals, or to station watchmen at crossings, none of these things can be required, and negligence cannot be predicated on the failure of the railroad to supply them, and that if the court holds otherwise, it is establishing by judicial decree a ground of negligence that can only be established by statute or ordinance. We cannot take this view. Of course the legislative power may require that railroad companies take certain precautions for the protection of the public, and, when it does so, its requirements in this regard are absolute, and failure to observe them is negligence. Summer v. C. & N. W. Ry. Co., 122 Minn. 44, 141 N. W. 854;Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275. But if the Legislature imposes no requirement, the courts are bound as best they can to determine what acts or omissions are negligent. Though there were no statute on the subject at all, the courts might determine that ordinary care required that a railroad company equip its engines with a bell and whistle. Where a railroad company does supply them, a court may find that failure to sound them under certain conditions is negligence, Loucks v. C., M. & St. Ry. Co., 31 Minn. 526, 18 N. W. 651;Czech v. G. N. Ry. Co., 68 Minn. 38, 70 N. W. 791,38 L. R. A. 302, 64 Am. St. Rep. 452;Croft v. C. G. W. Ry. Co., 72 Minn. 47, 74 N. W. 898,80 N. W. 628); and though the statute requires that they be sounded under certain conditions, the court may still find that under particular circumstances full compliance with the statute is not enough, but that ordinary care requires that they be sounded more frequently than the statute absolutely requires. Struck v. C., M. & St. P. Ry. Co., 58 Minn. 298, 59 N. W. 1022. Just as surely then must it be said that it is within the power of the court to determine that under particular circumstances signal by an engine bell and whistle is not...