52 Minn. 79 | Minn. | 1892
At about half past five o’clock, or a little later, in the afternoon of the 17th of December, 1891, it having then become dark, the plaintiff, in an open buggy with a span of horses, drove north on Seventh avenue in the city of Anoka towards the track of the defendant, which crossed that street. As he approached the crossing to within about twenty-five or thirty feet of the railroad track a passenger train from the west ran over the crossing, frightening the horses so that they wheeled suddenly, throwing the plaintiff out of his buggy, causing injuries for which this action is brought. Liability on the part of the defendant is attributed to the failure to give any signal or warning of the approach of the train, including the neglect of the defendant to station a flagman at this crossing. , .
As to the fact of the negligence of the defendant a case was presented which entitled the plaintiff to go to the jury. The evidence was conflicting as to whether any signal was given from the loco
From the fact that there was no collision with the train, it does not follow that the neglect to ring the bell or to have a flagman at the crossing was immaterial. It cannot be' assumed that, if signals of the approach of the train had been given, the plaintiff would not have heard or seen them, and have stopped his horses (although he says they were “safe and true”) at such a distance from the track that the passing train would not have greatly frightened them.
An ordinance of the city, requiring railroad companies whose trains crossed this avenue to keep a flagman there to give signal of the approach of cars and locomotives, was received in evidence, the defendant objecting. The suggestion now made, that the ordinance is uncertain in its terms, requiring the presence of a flagman “at all necessary times of day and night,” was not, we think, called in question by the objection stated at the trial, which seems to have been directed to the point that the charter of the city did not authorize the council to pass an ordinance upon this subject, and, further, perhaps, that the ordinance was unreasonable. It is apparent that the trial court so understood the objection, and was justified in so doing.
It is expressly conceded on the part of the appellant that under the general powers conferred on the city council it had authority to make any reasonable regulation upon the subject, unless such general authority is to be deemed restricted by Sp. Laws 1889, ch. 9, subch. 4, § 5, subd. 38. By that section the city council is express
Neither the assignments of error nor the exceptions raise the point that the court erred in submitting to the jury the question whether the ordinance was reasonable.
Judgment affirmed.
(Opinion published. 53 N. W. Rep. 808.)