100 Minn. 309 | Minn. | 1907
The accident out of which this case arose occurred in the village of Hibbing. Second and Third avenues of. the village are public streets
On October 5, 1904, the plaintiff, Everett, was employed by the village of Hibbing in hauling rock from a point on Railroad street, between First and Second avenues, where it had been unloaded from trains. About 11:40 a. m. he came south on Second avenue to Railroad street and drove over to the rockpile. One of his horses was nervous, and would prance and jump at the noise of engines and trains. The horse was afraid of hand cars and of cars moving alone. Because of the noise caused by the switching, the animal commenced to prance about the time it reached the rockpile. He was frightened, jumped, and could not be made to stand still. The foreman in charge of loading the rock, upon noting the condition of the team, told Everett to drive his “crazy team” to a place of safety and there wait until they were through switching. Everett then drove west on Railroad street to near First avenue, where he turned the team about so that the horses faced toward Second avenue. As he turned he saw an engine and some cars, and heard the bell upon the engine ringing. These ■ cars had been switching and backing in that vicinity all the
As the plaintiff was driving along he was sitting on the dump boards of his wagon with his feet hanging down. Pie says that he looked east, but did not look back after passing the lumber yard. The team was traveling about four miles an hour. As he drove along one of the horses continued to prance and’ jump so as to attract the attention of bystanders. As the team approached Second avenue, a single box car with a brakeman on top of it came, along the track behind him. This track was parallel to the road, and ran within some twelve feet of the part of the highway on which the wagon was traveling. There is some conflict about the rate of speed at which the car was approaching. The appellant claims that it was traveling at practically the same speed as the team, and remained fifty to seventy five feet behind it all the time. The respondent claims that it came at a more rapid pace, and that at the time of the accident the front of the car had reached the rear part of the wagon. The claim is that as the car approached the horses became more frightened, and began to dance and finally jumped to one side, thus bringing the front wheel of the wagon against the sidewalk, over which it passed and .fell into a depression some eighteen inches deep. The respondent claims that the board on which he was sitting then broke and caught in the wheel, so as to cause it to fly up and strike him and knock him from the wagon under the horses’ feet. The appellant, on the other hand, claims that the board
For the purposes of this appeal we accept respondent’s story that the horses were frightened by the /approach of the car and swung sharply to the right and ran away. The car was making no unnecessary noise as it approached. It had no engine attached to it, and, of course, was not ringing a bell or gong, or giving any such signal of its approach. The wagon was rattling so that Everett did not hear the car. The car had been detached from a train of four cars and an engine near First avenue, about four hundred feet from the point where the accident occurred. At the time it was cut off the bell on the engine was ringing. It was customary to spot in cars in this way, and as many as fifteen or twenty cars were handled in this manner in one day. It was not customary to handle the cars with an engine on the local track, and the evidence tends to show that a single car can be handled more safely with a man handling the brake than when attached to an engine. The car could be stopped by the brake within three or four feet. Everett testified that he was unfamiliar with this method of “shunting” cars. Everett did not intend to cross the railroad track on Second avenue, but intended to turn south when he reached the avenue and go home for his dinner. Upon this condition of the facts the jury returned a verdict in favor of the plaintiff, and the defendant appealed from a judgment entered thereon.
1. The issues involved were the negligence of the defendant and the contributory negligence of the plaintiff. The specific negligence on the part of the defendant charged in the complaint is:
That while plaintiff was so driving, and just before the said team reached the intersection of said Second avenue and Railroad street, the defendant negligently and carelessly, and without ringing any bell or blowing any whistle, and without giving any warning of any kind, backed a car by means of. a locomotive engine upon said track at a switch situated at a point westerly from' said. Second avenue, and in the rear of plaintiff, all of which was done upon said public street, within the limits of the said village of Hibbing. Thereupon, and when plaintiff’s team was entering upon the street crossing at the inter*313 section of said Railroad street and said Second avenue, and while said team and said 'wagon in which plaintiff was riding were in a position parallel with said railroad track of the defendant, the defendant carelessly and negligently caused said car to be moved over said track from said switch easterly past plaintiff and his said team and w.agon; that in moving the said car the defendant carelessly and negligently entered as aforesaid upon said track with said engine attached to said car; that after said engine and said car had crossed said switch the defendant negligently and carelessly, without ringing any bell or sounding any whistle,'and without giving any warning of any kind, shunted said car eastward along said track; i. e., men in charge of said engine and car started said car eastward upon said track, while the same was attached to said engine, and after sufficient headway-was attained to drive said car well down said track past said Second avenue, said men in charge of said engine and car disconnected said engine from said car at a point westerly from said Second avenue, and near said switch, thereby causing said car to pass along said track unaccompanied by any brakeman or other person and unattached and separated from said engine.
Upon this allegation plaintiff contended that the railway company was negligent, upon general common-law principles, in failing to properly handle its car in view of all the circumstances and surrounding conditions, and that it was guilty of negligence as a matter of law because of failure to ring the bell or blow' the whistle as the car approached one of the crossings, as required by the statutes of the state.
The railway company claims that it was handling the car in a prudent, customary, and safe manner, and by the means generally employed by railroads; that the car was moving at a slow rate of speed, was equipped with safe brake appliances, and was manned by a competent brakeman who could stop the car with his brakes within three feet upon any emergency, much more quickly than it could have been stopped by an engine, had there been one attached; that it was pursuing its lawful occupation and doing everything conducive to the safety of the public and its employees; that it had a competent man in
2. G. S. 1894, § 6637 (see R. L,. 1905, § 5001), provides:
A person acting as engineer, driving a locomotive on any railway in this state, who fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or sounding such whistle at intervals, until such locomotive, and the train, to which such locomotive is attached, shall have completely crossed such road or street, is guilty of a misdemeanor.
Respondent claims that this statute created a duty on the part of the railway company to him, and that its violation was negligence as a matter of law. We are required to determine two questions: (1) Does section 6637, G. S. 1894 (see R. D. 1905, § 5001) apply? And (2) if not, was the defendant negligent, regardless of the statute?
(a) Statutory provisions similar to this are in force in many states, and the authorities are not entirely uniform upon the question of their application. The learned trial court took the view that the statute is for the benefit of all who are on the highway or in the vicinity of the crossing, and who are injured by the failure of the company to
In a recent standard work, it is said: “There is conflict of authority as to who may claim the benefit of the statutory signals, and it may ■depend somewhat upon the language of the particular statute. Where the statute does not specifically designate the class to whom the duty -'is owing, the courts have usually construed it to be due only to those who are about to use, are using, or have lately used, the crossing, and have held that no others could recover for injuries resulting from a failure to give the signals; but other courts have gone further, and hold that the duty is for the protection of all persons lawfully at or near the crossing from any danger to be apprehended from the sud•den approach of a train without warning.” Summarizing the cases, the author says: “According to what we regard as the better rule, the company owes no duty to one who is not upon the highway near the crossing to give the statutory signals; and it is not, therefore, liable to one whose horse, while upon a parallel highway which does not cross the track, or in a field, is frightened and runs away because the statutory signals were not given for the crossing of a neighboring 'highway, and the owner thus failed to hear and prepare for the approach of the train.” 3 Elliott, Railroads, §§ 1158, 1264. Judge Thompson, in his work upon the Raw of Negligence, says: “It has been well reasoned that this omission is negligence as matter of law only when injury results therefrom to persons or animals endeavoring -or intending to cross the track upon a street or highway crossing; .and this, for the manifest reason- that the object of the statute is to
The cases sustain these views. The first in which the question seems to have been considered is People v. New York, 25 Barb. 199. The action was to recover the statutory penalty imposed for running a train over a highway without giving the required signals. At the crossing in question the railroad passed above the highway on a bridge. The statute imposed a penalty for failure to give the signal “whére the railroad shall cross any traveled public road or street.” It was held to apply to overhead as well as grade 'crossings. But see Favor v. Boston, 114 Mass. 350, 19 Am. 364. The statute under consideration in Harty v. Central, 42 N. Y. 469, required the company to cause a board with the inscription, “Rook out for the locomotive!” to be placed wherever a public highway crossed a railroad on the same level, and within three hundred feet of the crossing to ring a bell or blow a whistle as the train approached such crossing. The statute was held to impose no duty upon the railroad company to give the warning to a person who was walking on the track within three hundred feet of the crossing. The person killed was probably a trespasser, but this fact was regarded as of no importance. “I shall assume,” said Mr. Justice Earl, “that the intestate was lawfully upon the railroad at the time of the accident. * * * The sole object of this law, it seems to me, was to protect persons traveling upon the highway at or near the crossing. * * * Railroad companies were not required by this law c,to ring the bell nor sound the whistle when the highway passed along the railroad nor when it passed at an elevation over it, or un
‘In Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 R. Ed. 1003, Mr. Justice Gray, in reference to a similar statute, said: “There is no evidence that the engine which struck the plaintiff was about to cross a highway; and the main, if not the sole, object of •the statute evidently was to protect travelers on the highway. * * * It may perhaps include passengers on the trains or strangers not trespassers on the line of the road” — citing O’Donnell v. Providence, 6 R. I. 211, and Harty v. Central, supra. In the O’Donnell case the plaintiff was struck by an engine while he was walking along the track at a point some distance from a crossing. The statute required a bell to be rung at least eighty rods from the place where the railroad crossed the highway, and to be kept ringing until the engine crossed the highway. The evidence showed that at the time of the accident plaintiff was not “either at the place where the railroad crossed the public highway on the same level, or upon the highway which was so crossed by the railroad, but at a considerable distance from any such highway and upon the track of the railroad.” Mr. Justice Bray-Ion said: “Now, in looking at the provisions of this statute, we think the purpose and object of them are reasonably clear. The act does not require the bell to be rung at or near the approach to any place where any private passway crosses the railroad, nor near any place where the railroad crosses even a public highway above or below the level of such highway, but only near highways or turnpikes which the railroad crosses on the same level, and where only there would be danger of a collision of the train with individuals, or their horses, carriages, or teams. The bell is required to be rung for the distance of eighty rods before coming to such crossings. From the usual speed with which trains move, the time between the first signal from the bell till the engine would cross the public highway would be barely sufficient for reasonable notice to persons approaching such crossing— from thirty to forty six seconds. . It is quite evident that it could not have, been intended to warn people elsewhere. * * * We are all of opinion that this enactment was not for the benefit of persons in the situation of the plaintiff.”
In East Tennessee v. Leathers, 78 Tenn. 103, the statute was held to have no application where a person was injured while traveling along a public road parallel to the railroad. “It seems clear,” said -Mr. Justice Freeman,- “this language imposes a duty on the company in order to give warning to persons about to cross the road, or who may be in the act of crossing possibly, or had just passed over the road;
In Williams v. Chicago, 32 Ill. App. 339, the statute was held not to be for the benefit of a person plowing in a field adjacent to and a short distance from a crossing. In affirming this case, the supreme court of Illinois said; “Similar provisions exist in the statutes of other states, and the uniform current of authority is in favor of the construction that the requirement is for the benefit of travelers upon the highway. In some of the cases the obligation to ring the bell or blow the whistle exists where the grade of the railroad track and that of the highway are on the same level; in others, where the track is upon a bridge raised above and over the highway. In some of the cases it is held that the duty of giving the signal is exacted in order to
In Pennsylvania v. Fertig, 34 Ind. App. 459, 70 N. E. 834, it is held that the statutory duty is imposed, not merely for the protection of travelers from actual collision with passing trains, but also to afford opportunity to travelers in vehicles drawn by animals to secure them against taking fright at passing trains. From the facts it appears that this statement must be confined to such as were traveling upon the highway with the intention of crossing the railway track.
New York v. Martin, 35 Ind. App. 669, 72 N. E. 654, very closely resembles the case at bar. The statute required that the trains should give signals on approaching a crossing, and provided that the company should “be liable in damages to any person or his representatives who
In Jenson v. Chicago, 86 Wis. 589, 57 N. W. 359, 22 L. R. A. 680, it appeared that the plaintiff was traveling along a highway or wagon road which passed under a railroad bridge. As he passed under the bridge, his horse was frightened by the approach of a train, became unmanageable, and ran away. It was held that he could not avail himself of the failure of the engineer to give the signals required by the statute. The court said that “all the statutory regulations and liabilities on the subject of railroad crossings apply onty to such as are constructed at even grade with the highway, and none of them are applicable to a crossing constructed above or below the highway.”
In Reynolds v. Great Northern Ry. Co., 69 Fed. 808, 16 C. C. A. 435, 29 L. R. A. 695, it appeared that the plaintiff was driving along a road parallel with and about twelve feet distant from the railroad track. “Our conclusion is,” said Judge Sanborn, “that a statute which requires railroad companies to give a warning signal of the approach of trains to their crossing of a road or street, imposes no duty to give such warning to those who have not lately used, who are not using, and who do not intend to use the crossing, and such parties cannot recover of the railroad companies for a failure to give the warning. The purpose of such a statute is to warn those who have lately used, those who are using, and those who are about to use the crossing. It imposes a duty upon the railroad company to give to these persons the statutory warning, and a failure to give it is a neglect of duty to them, for which they alone may recover, if injury results. These views are supported by the great weight of authority.”
In Burger v. Missouri, 112 Mo. 238, 20 S. W. 439, 34 Am. St. 379, the statute was held not to apply in favor of a boy who was passing through between the cars of a train which had been left standing, on-a crossing. The train started without giving any signal. The court said that the statute “has no application to one situated, as plaintiff was, in the middle of the train and between two cars, but was intended
In Melton v. St. Louis, 99 Mo. App. 282, 73 S. W. 231, the plaintiff was driving on a highway parallel with the track when his horse was frightened by an approaching train. The train was about one-quarter of a mile from one crossing and a half mile from another which it had recently passed over. The plaintiff had not crossed the track at the crossing behind, and did not intend to cross the track ahead of him. The court said: “As the statutory precautions requiring signals to be given by the engine of a railroad train approaching a crossing of a public street or highway have been held in this state, as well as in other states, to be intended for the warning and protection of persons crossing or intending to cross a railroad over a street or public road, by giving such persons upon the public highways notice of an approaching train, respondent, under the conditions presented and at the place of the accident, was not within the protection of the statute, and proof of omission by appellant’s train to whistle and ring at the eastern or western crossing in obedience to the law did not render it liable for the damages sustained by him. * * * The claim of plaintiff that, if the statutory signals had been given at the eastern crossing, he would have been warned of its approach and escaped to a part of the highway not so near the railroad track, is illogical, remote, and but conjectural. If the train, as it approached respondent, had been emitting signals continuously by whistle and bell, the peril of plaintiff would have been but increased, the probability of his horses taking fright but made greater.” To the same effect see Grand Trunk v. Rosenberger, 9 Can. Sup. Ct. 311, 19 Am. & Eng. R. Cas. 8, Rosenberger v. Grand Trunk, 8 Ont. App. 482, 15 Am. & Eng. R. Cas. 448.
In Central v. Raiford, 82 Ga. 400, 9 S. E. 169, it was said that, although the statute was intended primarily for the benefit of persons crossing the track and not those walking along the track, a failure to comply with the statute was nevertheless evidence of negligence, which may go to .the jury.
In Ransom v. Chicago, 62 Wis. 178, 22 N. W. 147, 51 Am. 718, it was held that a failure to give the crossing signals is a negligent' act, of which one may complain who is injured by such failure while driving on a road parallel to the track and in the vicinity of the crossing. An examination of Jenson v. Chicago, 86 Wis. 589, 57 N. W. 359, 22 R. R. A. 680, Barron v. Chicago, 89 Wis. 79, 61 N. W. 303, and Mills v. Chicago, 94 Wis. 336, 68 N. W. 996, makes it doubtful grhether this case is now recognized as controlling in that state. In Gahill v. Cincinnati, 92 Ky. 345, 18 S. W. 2, it was held that persons lawfully using a private crossing are entitled to the benefits of the signals which they knew it was the duty of the railroad to give at a near
A distinction has been made between the liability to persons who are on the railway grounds in the vicinity of crossings and those who are on private grounds or highways which do not cross the track. This distinction seems to have been in the mind of Mr. Justice Brewer when he wrote the short concurring opinion in St. Louis v. Payne, 29 Kan. 166. In Lonergan v. Illinois, 87 Iowa, 755, 49 N. W. 852, 53 N. W. 236, 17 L. R. A. 254, the plaintiff was lawfully on tHfe depot grounds, unloading corn into a crib, from which it was to be shipped over the defendant’s road. The crib was near the crossing, and the approach of a train without signals frightened the team. “It may be presumed,” said Chief Justice Beck, “that the statute, is intended to warn persons at the crossings of the approach of the cars, and thus enable them to' avoid the engine. But the signal enables all persons who may be exposed to danger by the approaching engine to escape it, and such persons may rely upon the discharge of the'duty required by the statute, as in all other cases, and act accordingly. It is therefore plain that the plaintiff sustained injury by the neglect of the defendant’s employees in omitting the signal,’ and may recover therefor.” After a rehearing an opinion was filed in which the effect of the general language used in the original opinion was somewhat restricted. Stress was placed upon the fact of the relation existing between the railway company and the plaintiff, and that the latter was upon the company’s grounds at its invitation for the purpose of transacting business with it. See the subsequent cases of Ward v. Chicago, 97 Iowa, 53, 65 N. W. 999, and Mitchell v. Union, 122 Iowa, 237, 97 N. W. 1112.
In Chicago v. Metcalf, 44 Neb. 848, 63 N. W. 51, 28 L. R. A. 824, importance was attached to the fact that the plaintiff was upon the
3. It is apparent from the way in which the case was tried and submitted and from the judge’s memorandum, that the plaintiff relied principally upon the failure of the railway company to give the statutory signal. But it is claimed that there was evidence tending to show that the defendant was negligent in the management of the car, regardless of the statutory provision in reference to signals on approaching crossings and that the verdict must, therefore, stand as against the defendant’s motion for judgment. We are unable to find anything in this record which tends to show negligence on the part of the railway company in the management of the car, if, as we have found, no statutory •duty existed to give the signals for the crossing. The car was being handled in the customary manner. It was in charge of a brakeman, who was able to control it as readily and effectually as could have been •done had there been an engine attached. No unusual or unnecessary noise was made, and the car followed or approached the plaintiff at a very slow rate of speed. The car in itself was not an object which was calculated to frighten horses of ordinary gentleness, and others were used, under the circumstances and conditions, at the risk of the driver. The team was frightened by the ordinary and usual operation of the car, and, as the statutory duty to give the signals was not due to the plaintiff, there was nothing done or omitted by the company which could give rise to a cause of action in favor of the plaintiff.
The judgment is reversed, with directions to enter judgment in favor of the defendant.