53 F. 464 | 8th Cir. | 1892
From the record in this case it appears that on the 30th day of May, 1891, Frank. McArthur, who was then about six years of age, was run over by some freight' cars which formed part of a train operated by the Chicago, Milwaukee & St Paul Railway Company over that branch of its line which passes through the village of Mazeppa, in'Wabasha county, Minn. To recover for the injuries thus caused him this action was brought in the district court of Wabasha county, and was thence removed into the United
From the evidence it appears that in 1856 a plat of the town of •Mazeppa was executed and ree< >rded by the owners of the realty included in such plat, and in 1878 a right of way 50 feet in width through said town was conveyed to the Minnesota Midland Railroad Company by the owners of ihe lots, the description in the deeds being by reference to the lots and blocks as laid out on the town plat. The defendant company in this action has succeeded to the rights of the Minnesota Midland Railroad Company, and its line of railway is operated over the right of way deeded as above stated, which enters tbe town from the southeast, and runs northerly, near the hank of the 5íumbro river, to the depot. Tbe business buildings and residences .are to the east of the railroad, (here being no houses between it and the river. Upon tbe plat of the town a street named Pine street is laid out, running westwardly from First street towards the river, and crossing the right of way of the railway. This street has not been opened and improved so as to be used for the passage óf wagons or other vehicles, hat some use has been made of it by pedestrians. At the time of the accident the train consisted of an engine, twelve freight cars, one baggage car, and a passenger coach. It was the purpose of the parties in charge of the train to place seven cars upon a spur track, which left the main track about two hundred feet north of Pine street, and to that end, as the train came into the town, it was cut into three sections; the first being composed of the engine and four cars, in charge of the engineer and fireman; the second, of the seven freight cars intended to he run upon the spur track, upon which was the conductor; and the third, of ihe remaining part of the (rain, under charge of a brakeman. In other words, it was intended to make a flyiug switch, and by that means to get the second section of the train upon the spur track, leaving the first and third sections upon the main line. The only person upon the second section was the conductor, who testified that he pulled the pin between tbe first and second sections, and then went to the rear end of the first car of the second section, where the brake wheel and rod were placed.
It further appears that the plaintiff was playing with two other children near the residence oí' a Mr. Taft, when they heard the whistle announcing the coming of the train; that it was proposed that they put some pins upon the rails, in order that they might he flattened out by the cars passing over the same; that each of the children put pins upon the rails at a point w ithin (he boundaries of Pine street as defined upon the town plat, and then ran into some hushes near the track, and awaited Ihe coming of the train; that, after the first sec-lion of the train had passed by, tbe plaintiff ran down upon the track for the purpose of getting his pins, and while stooping down for that purpose he was struck by the second section, and badly injured. The plaintiff testified that when the engine with the cars attached thereto went by he supposed I hat the entire train had passed, and
The first error assigned is based upon the admission in evidence of the plat of the town of Mazeppa, over the objection that the width and extent of some of the streets and lots were not given, and that the acknowledgment was not in accordance with the requirements of the statute of Minnesota in force at the time of the adoption of the plat. The trial court ruled that the plat did not conform to the statutory requirements, but that it was admissible, with the other evidence introduced, for the purpose of showing that in fact there was a public highway or crossing at the point where the accident happened. Counsel have very fully discussed the requirements of statutory and common-law dedications of streets, but, in our judgment, it is not necessary to enter upon a consideration of these questions in determining the point presented by the assignments of error based upon the admission of this plat in evidence. It was certainly entirely proper, and, indeed, necessary, for the plaintiff to prove that the place where the accident happened was within the limits of the town of Mazeppa, and to show the proximity of houses and ways used by the people of the village, in order to enable the jury to determine the amount of caution and watchfulness that the parties in charge of the train were required to exercise when they made the flying switch which resulted in the accident in question. If no plat of the town had ever been prepared, but lots had been sold and houses built, and traveled ways had been established by common use, and thus in fact a village had been created, it would have been open toi the plaintiff to have proved such facts; and if, in fact, a viffage did exist, the railway company, in the running of its trains through such village, would be bound to use all the care and caution which the actual sitúa-: tion required. So, if a plat of the town had been prepared, and, without acknowledging or recording the same in accordance with the state statute, the owner of the realty had sold lots abutting on the streets as marked upon the plat, and the village had been built up with reference to such plat, and the railway company had taken deeds of its right of way with reference to the lots and blocks described on the plat, certainly such plat would be admissible, with other evidence, as tending to prove not only that a village did in fact exi$t, but as tending to show the location and extent of the highways
It is next assigned as error that the trial court refused to instruct the jury to return a verdict for the defendant upon a motion made to that effect at the close of the evidence. In support of the motion it was urged by counsel for the railway company that there was no evidence showing negligence on part of the defendant, and that, even if there was fault on part of the company, it -was not the proximate cause of the accident, which must be attributed to the unexpected act of the plaintiff in running upon the track. The undisputed evidence in the case shows that, after entering the limits of the village, the train was cut into three sections, for the purpose of making a flying switch; and ihe second section consisting of seven cars, going along a down grade, was left in charge of one person, who, according' to his own testimony, stood, not, at the front end of the section, where his view would have been unobstructed, but at the rear end of the first car, and in such a position that he did not see the plaintiff when he came upon the track, although the front bvakeman at the switch, the express messenger, and the rear braketnan on the third section saw him. It is evident that the conductor was in such a position that he could not, see the trade in front of the section on which he was placed, or that ho did not watch for persons coming on the track; and either state of facts would be evidence of negligence. When the train was severed into three sections, and these were sent along the track separately, it was certainly Ihe duty of the company to have each section under reasonable control, and to keep a proper lookout, to prevent accidents in connection with each section. If the evidence bad shown that, after cutting the train into sections, the first one, with the engine attached, had been started down the grade towards the depot, and the engineer and fireman had gone to the rear end of the engine, and had thus permii ted the section to move along through the village without any proper lookout being kept, certainly it could not he claimed that the company had exercised the ca,re demanded of it under such circumstances. In fact, this was what was done with the second section, for, as already stated, the only person upon this section was the conductor, and he was not at the front end thereof,
¡ There being evidence tending to show negligence on part of the ¡company, it was the duty of the trial court to overrule, as it did, the ¡motion directing the return of a verdict for the defendant, and to subimit the issue of negligence to the jury; and the several assignments 'of error based upon the action of the court in this particular are ¡wholly without merit.
1 In the charge to the jury the trial court very fully and clearly stated the rule of law applicable to the facts upon the question of negligence on part of the defendant, and the only exception taken thereto was to that part of the charge wherein the court stated that, although the plaintiff might have been at play on a street, that would not make him a trespasser; the contention of the counsel for the railway company being that “it was not a question of what his right was to be or play upon a public street but what was his right to play on the railroad track, at a place of the character shown by the evidence. The charge was, therefore, to the effect — and a jury would so understand it — -that the plaintiff had a right to play upon the railroad track, because such track happened to cross what was claimed as a public street.” Taking the charge as a whole, we do not think the jury would put the construction upon it which counsel seek to do in their argument. The jury were instructed that children are entitled to the use of streets just the same as grown people, and that when upon them they must exercise proper care. The court did not charge, '
The judgment of the circuit court is therefore affirmed.