28 Minn. 98 | Minn. | 1881
This is an action for damages, for injuries to plaintiff’s horse, caused by the alleged negligence of defendant, in failing and neglecting to maintain and keep in a safe condition a crossing where defendant’s railroad intersected a highway. The negligence complained of was that a plank, which should have been kept fastened next to and along-side of the iron rail, had been torn up and removed, thus leaving a space or hole between the surface of the highway and the railroad track, into which the foot of plaintiff’s horse was caught and injured while being driven on the highway over said crossing. The answer of defendant denies any negligence on its part, and alleges that the injury complained of was caused by the negligence of plaintiff himself. The trial resulted in a verdict for the plaintiff. Defendant moved for a new trial on the ground of error in law occurring at the trial and duly excepted to, and that the verdict was not justified by the evidence and was contrary to law. The motion having been denied, defendant appeals.
The first assignment of error is that the court, under defendant’s objection, allowed certain witnesses for plaintiff to testify how the planks at these railroad crossings were usually laid. The objections made to this evidence were two: First, that the witnesses were not qualified to give an opinion on the subject, not having been shown to have any special experience in such matters; second, that evidence of what was usual in such cases was not competent. To the first objection it is sufficient to say that the witnesses were not being examined as experts, or called on to'give an opinion, but to state a fact. Evidence as to the manner in which these planks were usually laid at such crossings was competent; the degree of care which was required of defendant, in maintaining this crossing, being that which men of ordinary prudence would usually exercise under like circumstances, evidence as to the manner in which such crossings were usually constructed was competent, although, of course, not conclusive evidence against defendant on the question of negligence.
Defendant also took exception to the ruling of the court admitting evidence tending to show that the locus in quo had been opened, worked, and travelled continuously for 10 years as a highway. This was competent evidence, tending to prove the existence of a highway by common-law dedication. But the evidence was admissible upon still another ground. Even if this was not a legal highway, yet if it. was openly and notoriously used as such by the public, and the defendant recognized it as such by permitting the public to use it, and by assuming to maintain a crossing at that point, they would be bound to exercise precisely the same precautions to keep it in repair as if it. was in fact a legal highway. Webb v. Portland & Kennebec R. Co., 57 Me. 117.
The evidence disclosed the fact that plaintiff’s servant was informed that the crossing was unsafe and out of repair before he drove across it. In view of this evidence, defendant moved, when plaintiff rested, to dismiss the action, because it appeared that plaintiff was guilty of negligence which contributed to produce the injury. The court refused
The court was correct, both in the refusal to dismiss, and in qualifying the request to charge the jury. The radical error of defendant, in both instances, was that he assumes that it was necessarily negligence to attempt to drive over the crossing after notice of the fact of its being out of repair, without regard to the circumstances of the case or the nature of the defect. The fact that a person attempts to travel on a highway after he has notice that it is unsafe or out of repair, is not necessarily negligence. This depends on circumstances. He cannot, of course, heedlessly or recklessly run into danger. But when he knows that a highway is out of repair, whether he ought absolutely to refrain from attempting to pass over it, or whether he would be‘justified in making the attempt, using such a degree of care in so doing as would be adequate and commensurate with the condition of the road, is a question of fact to be determined from all the circumstances of the case. Even if plaintiff’s servant knew that this crossing was out of repair, he was not bound to anticipate all the perils to which he might possibly be exposed, or to absolutely refrain from pursuing his usual course on account of risks to which he might possibly be exposed. Some risks are taken by the most prudent of men, and the plaintiff would not be debarred from recovering
Defendant is not excused merely because the plaintiff’s servant knew that some danger existed through defendant’s neglect, and voluntarily incurred such danger. The amount of the danger, and the circumstances which led plaintiff’s servant to incur it, are ordinarily questions for the consideration of the jury. Clayards v. Dethick, 12 Q. B. 439; Humphreys v. Armstrong Co., 56 Pa. St. 204. It would be a very harsh and unreasonable rule, if a traveller on a highway were compelled, under all circumstances, when he knew a highway was out of repair or unsafe, absolutely to refrain from pursuing his journey, without regard to circumstances, and without reference to the extent of the danger, or else pursue his course entirely at his own risk. Previous knowledge of the unsafe condition of this crossing was a circumstance to go to the jury on the question of contributory negligence; but it should be submitted to them, together with all the other facts of the case, for them to determine whether, with such knowledge, plaintiff’s servant exercised ordinary care in attempting to drive over this defective crossing, and whether in proceeding he used ordinary care to avoid injury. If the risk was such that men of ordinary prudence, having knowledge of the defect, would not, under the circumstances, have attempted to pass over it at their own risk, then plaintiff’s servant had no right to attempt to pass it at the risk of the defendant. But if such persons would have believed it reasonably safe to attempt the passage in the manner adopted by plaintiff’s servant in this case, plaintiff could recover, notwithstanding such previous knowledge of the condition of the crossing. Thomas v. Western Union Telegraph Co., 106 Mass. 156; Mahoney v. Metropolitan R. Co., 104 Mass. 73; Lyman v. Amherst, 107 Mass. 339; Shearman & Redfield on Negligence, § 414. In the present case, a court would have no right to hold that it was negligence per se to attempt to drive over this crossing with knowledge of the fact of the removal of this plank. That was eminently a proper question for the consideration of the jury, in view of all the circumstances of the case. The case was, therefore, properly
There were other exceptions taken. at the trial, but none of them, in our judgment, present any question requiring special consideration. Order affirmed.
Dickinson, J., did not sit in this case, having presided at the trial in the district court.