139 Minn. 258 | Minn. | 1918
Arvid. A. Holm met almost instant death in a collision with defendant’s fast mail train at a railroad crossing in the village of Tintah, and
The only other question is whether the court erred in ruling that the evidence at the second trial showed that the deceased was chargeable with contributory negligence as a matter of law.
The depot at Tintah is on the westerly side of the railway tracks, but Atlantic avenue, the principal business street of the village, is on the opposite or easterly side and extends along the right of way. Fourth street crosses the tracks at right angles and the center line of this street is 258 feet north of. the door to the depot. This is the only crossing, within the built up portion of the village and passes over five railway tracks. For convenience these tracks were numbered consecutively from 1 to 5 beginning with the track nearest the depot and proceeding easterly. Number 1, the most westerly of these tracks, is the main line, or passenger
The deceased was a vigorous, healthy young man in full possession of all his faculties.' He was engaged in the livery business in the village and familiar with the situation. Shortly before one o’clock in the afternoon of a bright August day he drove a span of horses attached to an open buggy along Atlantic avenue, turned into Fourth street and proceeded to the crossing of the first or main track. At this crossing he was struck by the fast mail. Until he reached the third track, his view of the main track in the direction from which the train was approaching was entirely obstructed by buildings and by strings of cars upon the other tracks.
Plaintiff presented the testimony of two witnesses who saw the accident. One was the principal of the village school who had gone to the depot to inquire about a trunk. He testified that while talking with the agent the latter remarked that he was expecting the fast mail; that shortly afterward the witness saw the train come in sight and called the attention of the agent to it who thereupon got his flag and walked hurriedly toward the crossing; that the witness accompanied him to the end of the cinder platform when the agent broke into a run for the crossing and the witness turned away from the railroad in a westerly direction toward his hotel; that a few moments later he turned to see if the agent had reached the crossing and saw him in the street waving his flag and at the same time saw the team approaching from the east at a slow trot; that at this time, as near as he could place it, the team was at the fourth track; that the driver was leaning slightly forward and looking downward and did not turn his head and appeared to be paying no attention to his surroundings ; that the agent stepped into the middle of the main track excitedly swinging Ms flag, but the horses continued to trot in the same manner until within 2 or 3 feet of this track before the driver made any move, and that then the agent stepped back out of the way of the train and the driver “held onto his horses all he could, but he was too close to the main track, and the locomotive shot' right by, and the horses leaped into the locomotive. I think he wasn’t more than two feet from the main track when he tried to hold back his horses.”
A traveler about to cross a railroad track is bound to be alert and vigilant for his own protection, and his failure' to use his senses of sight and hearing to discover whether a train is approaching constitutes contributory negligence as a matter of law. 2 Dunnell, Minn. Dig. § 8188, and cases there cited.
It seems plain to us that, if Holm had looked as he approached the crossing, he must have seen the agent with his waving flag in time to have avoided the collision, and that the evidence shows beyond question that he failed to look or to take any precaution for his own safety. ' It follows that the trial court was correct in ruling that he was chargeable with contributory negligence as a matter of law.
Judgment affirmed.