This was an action brought to recover damages from the defendant for causing the death of Erick Pehrson by negligence.
According to the plaintiff the facts are as follows: On August 17, 1903, plaintiff’s intestate was proceeding along a public street in the city of St. Peter, called Hartew street. He was driving in a jump-seat top buggy, hitched to a single horsе. The horse was very gentle. The top on the buggy was up. The curtains of the top were down, but the one on the right-hand side, where deceased was sitting, was fastened only at the top. The front or jump-seat on the buggy was down, and the other seat in place over the same. He was accompanied by his daughter, thirteen years of age. On thе right-hand side of the street was a cornfield, which obstructed entirely the view of the defendant’s railroad track and right of way until the deceased arrived at a point fifty feеt east of the center of the railroad track of the defendant. As the deceased approached the defendant’s railroad track he was driving
The court granted the motion of the defendant to direct a verdict on= the ground that the plaintiff’s decedent was guilty of cоntributory negligence, and subsequently denied the plaintiff’s motion for a new trial.
The essential question in this case concerns the contributory negligence of plaintiff’s intestate. The defendant insists that it has demonstrated to a mathematical certainty that, if the deceased had been traveling at from a mile and a half to three miles per hour, and if the train-had been going upwards of one hundred miles per hour, and a fortiori if the train had been going at less speed, the engine would necessarily have been in plаin sight of the plaintiff’s decedent, if he had looked at the point his daughter says he did look. The photographs taken and introduced in evidence tend to sustain this contention. Counsel for plaintiff presented no clear refutation of the correctness of this calculation.
The princiрles of law applicable to this state of facts are definite and well settled. When the uncontradicted evidence conclusively shows that: the colliding train must havе been plainly visible from the point at which, the testimony shows that the injured or killed person looked and listened for the train, the law conclusively presumes either that he did nоt look and listen, or that if he did look or listen, or both, he afterwards heedlessly disregarded the knowledge thus obtained and negligently went into an obvious danger. In neither view is the company operating the train responsible under ordinary circumstances for the damages consequent upon the collision, of which the person injured or killed was thе-proximate cause. Brown v. Milwaukee & St. P. Ry. Co.,
If that point be so far distant from the track as to enable the person injured оr killed to know of the approaching train in due season to avoid the collision with it, he is guilty of contributory negligence as a. matter of law and there is nothing for a jury to pass upon. Blount v. Grand Trunk Ry. Co.,
The present case is obviously distinguishable from Hendrickson v. Great Northern Ry. Co. The environment and the cause of the accident in that case were essentially different. When Hendrickson emerged from a ravine at a point fifty feet from the railroad, the engine came in
Another principle is well established: That a person crossing as •decеased was could not rely upon the signals to remind him of danger. '“He is bound to be awake and alive for his own protection.” Lewis, J., in Sandberg v. St. Paul & D. R. Co.,
The duty of exercising caution in attempting to cross a railway track, a place of known danger, is not relaxed by the opportunity or occasion for theorizing or difference of opinion as to whether a train is or is not likely to pass. Observation, not logic, is the proper precaution. Dodge, J., in Guhl v. Whitcomb,
Accordingly, upon plaintiff’s own view of the facts in this case, that deceased looked up the track at a point fifty feet from it, it is not necessary to determine how far there is tо be applied to it the ordinary rule that one who attempts to cross a railroad is bound to use his senses continually while approaching and while crossing the place of known danger (Rogstad v. St. Paul, M. & M. Ry. Co.,
The conclusion thus reached renders it unnecessary to consider the other questions raised; for example, with respect to defendant’s negligence in running faster than the ordinance permitted and to the reasonableness of that ordinance.
Order affirmed.