34 Minn. 57 | Minn. | 1885
The plaintiff and his son were hauling timber to a place about half a mile distant from defendant’s road. After dark, and about 6 o’clock in the evening of January 29,1883, plaintiff, having discharged his load, left his team unhitched and unguarded at the side of the highway, and went to help his son unload at a point some rods distant, and out of sight of his own team. While he was absent, his team started and ran down the highway, and on coming to the railway crossing turned off the highway, crossed over the cattle-guard, and followed down defendant’s railway track, came in collision with a passing train, and sustained the injuries complained of. What enabled the team to cross over the cattle-guard was the fact that it was filled with snow and ice up to the level of the track. To leave a team of horses untied in such a place at so late an hour and in winter, when they are especially liable to become restive, would seem to us exceedingly careless conduct. But we shall assume that this was a question for the jury.
It is not decisive of this question to answer that they are bound to maintain cattle-guards in winter as well as summer. It must be remembered that railroad companies are not to be held to the liability of insurers of their fences and cattle-guards. They are only bound to
On the other hand, the burden of the constant removal of this snow and ice is so difficult and expensive as to be almost impracticable. It would involve the employment of a large extra force of men along the entire line of road. The work at times would be incessant, for if every pit or trench were cleared at night, they would be liable to be filled again by morning. This burden would be so great as to be disproportionate to any benefits to be derived from its performance, and not subservient to any public necessity. This is in itself, we think, an important consideration in determining whether ordinary care and reasonable diligence require its performance. Men of ordinary prudence would not ordinarily feel called upon to do a thing the expense and difficulty of doing which were so great, and out of all proportion to the benefits to be derived from its performance, and where the chance of mischief from not doing it is so remote and inconsiderable. A cattle-guard is but a part of the fence, and if ordinary diligence requires a railroad company to remove the ice and snow from a cat-
A city is required to exercise reasonable care to keep its streets •and sidewalks in a safe condition. This duty, of course, devolves upon them in winter as well as summer. Yet, in determining what constitutes such reasonable care, it has been held that it is not liable for .an injury caused by a fall occasioned by a ridge of ice formed on the sidewalk by the tramping of snow, and freezing and melting until the surface becomes uneven. This was held upon the express ground that it would be a great hardship, and involve ruinous expense, if all the multitudinous ways subject to be affected by winter storms are to be constantly watched, and kept in thoroughly good condition. McKellar v. City of Detroit, 23 N. W. Rep. 621. As bearing upon the question of what reasonable diligence requires, we think the principle of the case cited is somewhat analogous to the one at bar. We are aware that in Dunnigan v. Chicago, etc., Ry. Co., 18 Wis. 33, (the only case we have found in which this exact question has been passed upon,) it was held that to permit these cattle-pits to become choked with snow, so as to enable stock to pass over them, is a failure of statutory duty. But the question does not seem to have been very fully argued, there being other and more prominent questions in the case, and the court, in their opinion, dispose of the matter very summarily, and without much consideration. Our conclusion, after considerable reflection, is that the burden of making these removals of snow is so disproportionate to any benefits to be derived from it, and the mischief liable to result from not doing it is so remote and inconsiderable, as not to constitute the basis of so expensive and extensive a charge upon railroad companies, and that under ordinary circumstances reasonable diligence does not require them to do it. We say under ordinary circumstances, for the land or highway adjacent to a cattle-guard may, in exceptional or extraordinary cases, be so used, even in the winter, that ordinary care and prudence would require the removal of this ice and snow, so as to prevent the passage of animals on the railroad track. In this case no such extraordinary or
Order reversed, and new trial ordered.