143 Minn. 227 | Minn. | 1919
At Barnum in this state, on February 1, 1918, a sleigh carrying school children to their homes was struck at a grade crossing by the engine of a passenger train of the Northern Pacific Eailway Company. Seven of the children were killed and others were injured. A number of actions -were brought against the company on account of the accident. Among them was one hy -plaintiff in behalf of his minor son, who was injured. There was a verdict in his favor, and defendant appeals from an order denying a new trial.
After the verdict was returned, on the application of the railway company, an order was entered dismissing the action as to it and substituting William G. McAdoo, as Director General of Bailroads, as defendant. From this order, plaintiff appeals.
There were five charges of negligence. Each was submitted to the jury for a special finding'with reference thereto. It was found: (1) That defendant was negligent in maintaining the planking at the crossing; (2) in running its train at a negligent rate of speed; (3) in failing to have a safety gate, flagman, or bell at the crossing; (4) that either the engineer or fireman negligently failed to keep a proper lookout as the train approached the crossing, and that each of the acts or omissions above specified was a proximate cause of the accident; (5) that the whistle was blown and the engine bell kept ringing as the train approached the crossing. Each of these findings except the last is attacked by the defendant.
The following instruction was given: "Plaintiff must prove at least that the defendant was negligent in one of these five respects, and that negligence in that particular respect was a direct and proximate cause
The statute requires railroad companies “to construct and maintain * * * sufficient crossings,” wherever their lines cross a public highway. Planks must be laid between the rails and their surface must be level with the top of the rails. Crossings must be kept “in a safe and passable condition * * * easy for teams with loads and other vehicles” to cross. G. S. 1913, §§ 4256, 4257. A number of witnesses testified that at the place of the accident the planks were 1 or 1% inches below the top of the rails, and that, in driving across the track with a load, the runners of a ^leigh would stick on the rails. There was no direct evidence that this happened at the time of the accident, but the jury might infer that it did because it happened on previous occasions.
Some of the witnesses estimated the speed of the train at the time of the accident at 40 miles per hour; others at 60 miles per hour. Its last stop before reaching Barnum was at Carlton. It left there nine minutes late. It was scheduled to leave at 3:08 p. m. and to reach Barnum at 3 :34 p. m. The distance between the two stations is 18 miles. About two minutes of the lost time was made up on the run between them.
Barnum has a population of about 400. All travel to and from the territory west of the village passes over the crossing where the accident occurred. The driver of a vehicle coming from the east would have his view of the track to the north obstructed by cattle pens and by some lumber and pulpwood piled on the right of way near a sidetrack on the day of the accident. The day was windy and there was some snow in the air. There was no crossing hell, gate or flagman.
There are 19 assignments of error. They are principally addressed to the question of the sufficiency of the evidence to justify a finding that defendant was negligent in any respect.
Owing to the momentum of trains and the necessities and public nature of railroad traffic, a railroad company has the right of way at highway crossings. St. Paul Southern Electric Ry. Co. v. Flanagan, 138
Of Miller’s gross negligence there can be no question, but, while his responsibility for the disaster is apparent, it was not brought about solely by reason of his negligence or by reason of the negligence of those who permitted a vehicle covered as this was to be used in carrying school children almost daily across a railroad track. It is well settled that where the negligence of two persons concurs in causing an injury to another and such injury would not have been suffered but for the negligence of both, each is liable to the person injured. 2 Dunnell, Minn. Dig. § 7006. This court has recently stated the rule as follows: “Where several concurring acts or conditions, one of them a wrongful act or omission, produce an injury, such wrongful act or omission is to be regarded as the proximate cause of the injury, if it be one which might reasonably have been anticipated from such act or omission, and which would not have occurred without it. Vills v. City of Cloquet, 119 Minn. 277, 138 N. W. 33. See also Bibb Broom Corn Co. v. Atchison, T. & S. Fe Ry. Co. 94 Minn. 269, 102 N. W. 709, 69 L.R.A. 509, 110 Am. St. 361, 3 Ann. Cas. 450, and Fairchild v. Fleming, 125 Minn. 431, 147 N. W. 434.
The order denying the motion for a new trial is affirmed and the order dismissing the action as to defendant railway company and substituting the Director General of Railroads as defendant is reversed.