53 Minn. 464 | Minn. | 1893
The plaintiff’s intestate, her husband in his lifetime* came to his death through the negligence of defendant railway company, it is claimed, and in this action, which Avas brought to recoAur for the alleged wrongful killing, plaintiff had a verdict. The facts as established on the trial were that, when living, the deceased resided with his family on a farm in a prairie' country about one
On the trial it was shown that, in his lifetime, Lillstrom had used this crossing, and when it was in good repair. It appeared that he crossed at another place when going for the wood, and it was not shown that he had been at this crossing at all after the planks were taken up, until he was injured.
The 19th of February was a stormy day. About 4 P. I. a neighbor discovered Lillstrom lying upon the ground, then covered with snow, at this crossing. His horses, attached to the bob sleighs with one trace only, stood on the west side of the rails. One singletree was broken. Upon the sleighs was a heavy load of wood. He had evidently approached the place along the road from the west, (the railway running north and south,) for the rear bob stood west
1. It is contended by defendant company that because the crossing in question was not upon a public highway, regularly laid out or established, it owed no duty to the public to keep it in repair, and therefore was not guilty of negligence when removing the planking from between the rails. As hereinbefore stated, the evidence was plenary that the crossing was openly and notoriously used as such by the public, and that defendant had recognized it as such by permitting the public to use it. It had assumed to maintain a crossing at that point for years, and all of the time had encouraged its use by keeping it in repair. It owed the duty of reasonable care to those using the crossing, and was bound to exercise precisely the same precautions to keep it in repair as 'if it was in fact upon a legally laid out or established highway. Kelly v. Southern Minn. Ry. Co., 28 Minn. 98, (9 N. W. Rep. 588.) To the same effect are the cases of Ewen v. Chicago & N. W. Ry. Co., 38 Wis. 634; Barry v. New York Cent. & H. R. R. Co., 92 N. Y. 289; Murphy v. Boston & Albany R. Co., 133 Mass. 121; and Taylor v. Delaware & H. Canal Co., 113 Pa. St. 162, (8 Atl. Rep. 43.)
The question of defendant’s negligence was properly one for the jury to pass upon.
2. It is further contended by defendant company, even if its negligence be established, that there was no testimony tending to connect the accident which befell Lillstrom with such negligence; in other words, that it was not shown that the removal of the planks was the cause of his death.
We have stated the circumstances under which he was found, and undoubtedly the jurors came to the conclusion that they were warranted in believing that, while Lillstrom Avas attempting to cross defendant’s track at the crossing with a heavy load of wood upon his bob sleighs, the runners of either the forward or the rear bob, or both together, struck the rails, which projected a few inches above the snow, with such violence as to suddenly stop the horses, cause
There was no direct evidence as to the exact manner in which Mr. Till strum was fatally injured, but there were circumstances in evidence from which it may be justly and fairly inferred that, when the runners of his sleighs struck the projecting rails, the shock was such as to throw him upon and across the rails with great force and violence. If such be the fair and just inference to be deduced from the evidence, it was sufficient. Indianapolis, P. & C. Ry. Co. v. Collingwood, 71 Ind. 476; Indianapolis, P & C. Ry. Co. v. Thomas, 84 Ind. 197; Hays v. Gallagher, 72 Pa. St. 136.
The case of Orth v. St. Paul, M. &. M. Ry. Co., 47 Minn. 384, (50 N. W. Rep. 363,) cited by counsel for appellant, was altogether different from that at bar.
3. This brings us to a consideration of the claim of appellant’s counsel that plaintiff cannot recover because there was no evidence produced upon the trial that Lillstrom was exercising ordinary care and caution when attempting to cross the rails. The presumption is that he was, and that he was not guilty of contributory negligence. Such is the settled law in this state, and the cases cited by counsel are from states in which the opposite rule prevails. There was
4. We have examined each of the assignments of error not covered by the foregoing, and there are none which need special attention.
Order affirmed.
(Opinion published 55 N. W. Rep. 624.)