138 Minn. 176 | Minn. | 1917
On December 26, 1915, plaintiff was employed by the Northern Pacific Railway Company, as switchman in one of its yards in St. Paul. Defendant operated its trains through this same yard. In the part of the yard where plaintiff was employed were two main tracks called the east
There is some evidence of negligence on behalf of defendant in operating the train at excessive speed and without giving proper or customary warning of its approach.
The case is quite different from such cases as Joyce v. Great Northern Ry. Co. 100 Minn. 225, 234, 110 N. W. 975, 8 L.R.A.(N.S.) 756; Floan v. Chicago, M. & St. P. Ry. Co. 101 Minn. 113, 111 N. W. 957; and Torkelson v. Minneapolis & St. L. R. Co. 117 Minn. 73, 134 N. W. 307, where plaintiff was absorbed in work upon or about the track on which the train approached, and it is different from Jordan v. Chicago, St. P. M. & O. Ry. Co. 58 Minn. 8, 59 N. W. 633, 49 Am. St. 486, where the exigencies of plaintiff’s duties called upon him to go upon the tracks without premeditation or time or opportunity to ascertain whether there was danger.
The rules of la.w on this subject in this state are now quite well settled. If a person is in a place of peril, no matter if he came there through his own negligence, another who discovers him in such place of peril is obliged to use ordinary care to avoid injuring him, and failure to exercise such care is said in law to constitute wanton or wilful negligence. Sloniker v. Great Northern Ry. Co. 76 Minn. 306, 79 N. W. 168; Rawitzer v. St. Paul City Ry. Co. 93 Minn. 84, 100 N. W. 664; Anderson v. Minneapolis, St. P. & S. Ste. M. Ry. Co. 103 Minn. 224, 114 N. W. 1123, 14 L.R.A. (N.S.) 886; Havel v. Minneapolis & St. Louis R. Co. 120 Minn. 195, 139 N. W. 137; Palon v. Great Northern Ry. Co. 129 Minn. 101, 151 N. W. 894.
The question is, was there any evidence • of such wanton negligence in this case. We think there was not. Plaintiff was not on the track on which defendant’s train was approaching. He was about two feet outside of the track and within a very few inches of clearing the train. It is true the engineer and fireman on defendant’s train saw him there. But the significant fact is that plaintiff testified he thought he had taken
Order affirmed.