Floody v. Great Northern Railway Co.

108 Minn. 216 | Minn. | 1909

Lewis, J".

TJpon the former appeal (104 Minn. 474, 116 N. W. 943) the demurrer, upon the ground.that the complaint did not state facts sufficient to constitute a cause of action, was sustained, for the reason that it appeared from the facts stated that the derailment of the train was caused by the negligent handling of the switch by the Omaha Company, and not by reason of any fault of the Great Northern Company in the construction of the switch. In the complaint now before us the acts of the Great Northern Company with reference to the construction of the switch and the manner in which the accident was caused by reason of the defective switch are elaborated, and it fairly appears from the facts set forth that the accident was caused by the concurrent negligence of the Great Northern Company in constructing a defective switch with a rod so long that the dog would not automatically catch and hold the switch. The fact that the Omaha Company failed to take proper precautions to fasten the switch, knowing it was in the defective condition* described, does not necessarily release the Great Northern [Railway Company.

For these reasons, we agree with the trial court that the complaint states a cause of action, and the order appealed from is affirmed.

Jag card, J., dissents.