123 Minn. 279 | Minn. | 1913
Plaintiff’s intestate was killed in a collision between defendant’s train and an automobile he was driving. This action was brought to recover damages. Plaintiff prevailed, and this appeal is by defendant from an order denying its motion in the alternative for judgment or a new trial.
Appellant contends that it conclusively appears that the negligence of plaintiff’s intestate, Charles M. Green, caused or contributed to the collision. No other question is presented in this court.
The collision occurred in Argyle, a village in this state of some 800 inhabitants. Defendant’s railway runs north and south through the village. About two-thirds of the population reside west of the tracks. The depot is on .the west side of the main track, the platform eight feet wide coming within three feet of the west rail. On the east of the main track is the industry track, but since its location did not bear on the accident it need not be noticed. On the west side of the depot is also a platform along which runs the passing track. One of the main streets of the village called Fourth street
A little before 10 o’clock on the evening of July 8, 1910, a still but dark night, Mr. Green was seen cranking his small Brush runabout automobile. The machine was standing headed north on the west side of Pacific avenue, about 75 feet north of Second street. Green had some difficulty in starting the machine but finally succeeded. He stepped in, turned around toward the right, thence ran down to Second street, turned to the left and proceeded to cross defendant’s tracks. At this time some freight cars were standing on the passing track, and a string of three of these came down to within 10 or 20 feet of Second street. Mr. Green was running the automobile on low speed, and when so run this kind of a machine is very noisy. All who saw the collision tesify that he was going very slow, and at from 2 to 3 miles per hour. At the moment the front of the automobile came near or upon the west rail of the main track, defendant’s passenger train known as the Winnepeg Flyer, coming in from the north, running at a speed of not less than 30 miles per hour, struck the machine and hurled it some 75 feet in a southwesterly direction. Mr. Green was also thrown some distance, receiving injuries resulting in death within 36 hours.
It is however clearly demonstrated that at a point in the roadway of Second street 20 feet west of the west rail of the main track one can look past the depot when the platform thereof is clear and see a person standing in the center of the main track at any point up to 731 feet north of Second street. But it is to be noted that on the north side of Second street was a sidewalk, somewhat higher than the roadway, having stanchions and railings some two or three feet high. And as already stated there was quite a depression in the driveway between the two tracks. Green was seated in a low automobile. The platform of the depot is higher than the surrounding ground and the rails of the track. And at the time in question half
Appellant insists that Green knew of the train coming, for it produced a witness who testified that, when he called Green’s attention -.to the fact that the Flyer was coming as the machine was being •cranked, deceased said he thought he could make it; that is, cross •ahead of the train as the witness understood. But the presence of •this witness at that time is disputed by two men who stood within :8 or 10 feet of Green when he was cranking the machine, and the •story of this same witness as to what he did and had time to do thereafter before the collision contains such inherent marks of improbability that the jury might well discredit his whole testimony. The five witnesses who observed Green just prior to the collision substantially agree that there was nothing in his conduct to indicate that he was conscious of the approach of a train as he neared the fatal place, or was trying to beat it for the crossing. The very fact that he continued on very low speed, at a slow pace, is persuasive proof to the contrary. Green is dead. What observations he made, and exactly what he did will never be known. The night, was dark, -and what light there was, by which the persons who saw the accident could observe it, came from an arc light at the intersection of Pacific avenue and Second street. The headlight on the locomotive was a kerosene lamp, and none of these witnesses state that the reflection from the headlight in any manner was seen to cast such light •on the place of accident that Green’s movements could be seen any better by reason thereof.
However, it must be admitted that the deceased, although a comparative stranger in the village, knew that he was about to cross a railway track, he knew that he could not well depend on his sense of hearing to warn him of approaching trains while the engine of lis automobile was running, therefore it became the more imperative that he use his sense of sight to the utmost. Schneider v. Northern Pac. Ry. Co. 81 Minn. 383, 84 N. W. 124. It is also true that none
The rule applicable when the injured person is dead and cannot, be heard is well stated in Lewis v. Chicago, St. P., M. & O. Ry. Co. 111 Minn. 509, 127 N. W. 180: “The undisputed evidence must, clearly and fully rebut every reasonable presumption that he was. in the exercise of due care. * * * Nevertheless careful men are-sometimes careless, and the presumption must yield to clear proof of" negligence.” See also Knudson v. Great Northern Ry. Co. 114 Minn. 244, 130 N. W. 994; Gilbert v. City of Tracy, 115 Minn. 443, 132 N. W. 752, Anderson v. Duluth & Iron Range R. Co. 116 Minn. 346, 133 N. W. 805. We conclude that it was for the jury to say whether the presumption that Green used due care is clearly rebutted by the evidence. Appellant contends that a person driving-an automobile is in the control of his movements as readily as if" walking. And in cases of a pedestrian it has been held that, if within, a step or so there is opportunity to look and discover the impending-danger, and it is not taken advantage of, contributory negligence exists. Carney v. Chicago, St. P., M. & O. Ry. Co. 46 Minn. 220, 48 N. W. 912; Clark v. Northern Pac. R. Co. 47 Minn. 380, 50 N. W. 365, and Schneider v. Northern Pac. Ry. Co. supra. But we think there is quite a difference between a person walking and one-driving an automobile. The different movements in the handling of levers, clutches and brakes, and the liability of an automobile-engine to stall are all matters which complicate its control.
There is no conflict in the record as to the giving of the station, signal whistle about half a mile or more north of the station, but, the evidence is such that it was for the jury to say whether any other-whistle was blown or the bell run until the moment of collision. If"
While it must be admitted that this is a border-line case, we feel after a careful examination of the testimony and exhibits consisting of a plat and photographs of the streets, buildings and tracks mentioned, that it was for the jury and not the court to say whether the presumption that Green used due care was clearly rebutted by the evidence. It was left to the jury. The verdict is, in our judgment, fairly supported. The facts of this case, in our opinion, are no more persuasive of the existence of' contributory negligence than were the facts held to be for the jury in Simonson v. Minneapolis, St. P. & S. S. M. Ry. Co. 117 Minn. 243, 135 N. W. 745.
Order affirmed.