32 Minn. 208 | Minn. | 1884
This is an action by plaintiff, as administrator, for causing through negligence the death of Hemberg, his intestate. Hem-berg was employed at a planing-mill at the corner of Fifth street and Second avenue, on the east side, in the city of Minneapolis. At the corner of this avenue and Fourth street was a furniture factory. Along and near the planing-mill and factory, and between them and the avenue, the defendant, for their accommodation in loading and unloading lumber and furniture, had laid a spur track. The planing-mill proper set back from the line of this spur track about 20 feet. A shed extended from the mill to within about four feet of the track. There were several planers in the mill. The lumber was fed into the mill on the side away from the track, and passed through the planers at right angles and towards the track, coming out within a few feet of it. The planed lumber, as it was taken from the planers, was piled on the opposite side of the track, and as close to it as it conveniently
It does not appear that the owners of the planing-mill had obtained express authority to thus use the land and track of the company, but, under the circumstances, it is clear that they must have been fully aware of the fact of such use, and, it not appearing that they objected, it is to be assumed that it was with their permission and consent, and therefore that the owners of the planing-mill were in the lawful use of this land and track to the extent and for the purposes stated.
The planers made a great deal of noise, so that it would be difficult, if not impossible, to hear an approaching ear. This spur track was not used for the general and regular business of the road, but simply to set in such cars as were to be loaded or unloaded at the mill or factory. These cars were not set in at any regular or stated times, but merely as occasion required, at irregular intervals, sometimes more and sometimes less frequently. The owner of the furniture factory testifies that the car-loads of furniture sent out would not at that time exceed one in a week or one in two weeks, and of lumber brought in would sometimes be two or three in a day, and sometimes not one for two or three weeks. The owner of the planing-mill testifies that cars came in to take lumber out every day; sometimes two or three times and sometimes once a day, and sometimes three or four or five times a day. There were two methods by which these cars were brought in: one by “pushing,” — that is, where the engine follows the car to its place; the other by “kicking,” — that is, by giving the car an impetus with an engine, and then uncoupling it and letting it run to its place with this impetus.
The principal question raised is whether, on such a state of facts, a verdict for plaintiff is justified by the evidence. It is not seriously controverted, and could not successfully be, but that the evidence justified the jury in finding that defendant was guilty of negligence. But it is insisted that, inasmuch as, had the deceased looked, he could have seen the approaching car in time to escape, therefore, in not looking, he was, as a matter of law, guilty of contributory negligence. It is claimed that this fact brings the case within the decisions of this court, holding that it is negligence for a traveller at a highway crossing to go upon the track without making use of his senses to discover and avoid danger. But it seems to us that the cases are not analogous. A person going upon a railroad track is
The employment of the men who were carrying this lumber across the track was such that they might naturally be oblivious to the approach of cars. To look down the track for ears every time they crossed the track, perhaps as often as once every minute, would be almost physically impossible while their attention was being given to their work. There were no especial stated times to look. They might do so every minute for half a day or more, and no car approach. All this must be presumed to have been known to the company. The company never having objected to this, the owners of the mill and their employes must be deemed, at the time of this accident, to have been in the lawful use of this land for piling lumber, and of the track for the purpose of crossing and recrossing to and from it, this being the only means by which it could be reached. Having permitted such a use, it was incumbent on the defendant to exercise its rights, in view of such- license, so as not to mislead the licensees. And the licensees had a right to have regard to this duty on the part of the
We have examined the portions of the charge excepted to and find-no error. It was entirely proper to leave it to the jury to say whether “kicking” in a car was negligence. The meaning of the expression and the modus operandi having been explained to them, they were just as competent to decide whether it was negligence as experts. We find nothing in the special findings of the jury inconsistent with the general verdict, or that necessarily indicates that they rendered their verdict under a misapprehension of the duties of the respective parties.
In O’Brien v. City of Minneapolis, 22 Minn. 378, we held that where a struck jury is demanded, it must be struck at least six days previous to the commencement of the term at which the case is to be tried, so that the venire can be issued in time to secure the attendance of the jurors on the first day of the term, and that proceedings instituted after the commencement of the term for the purpose of obtaining such a jury are unauthorized and ineffectual for that purpose.
The amendment to Gen. St. 1878, e. 71, § 4, (La-ws 1881, c. 45, § 1,) providing that in Hennepin county the petit jurors shall be summoned to appear on the second Tuesday of each general term of the ■district court, does not change or amend the statute as to struck juries. This amendment may have removed, so far as that county is concerned, one of the reasons for requiring struck juries tobe selected six days before the commencement of the term of court; but the statute requiring it still remains. The venire for the struck jury was therefore properly quashed.
Order affirmed.