154 Minn. 350 | Minn. | 1923
Appeal from an order denying plaintiff’s motion for a new trial after a directed verdict for defendants in a personal injury case.
The accident happened on grounds near Lake City where the
Defendants wrere charged with negligence in failing to give the signals required at highway crossings; in failing to keep a proper lookout; in running the train at an excessive rate of speed, and in failing to maintain proper planking between the rails. There was evidence tending to substantiate some of these charges. At the close of plaintitff’s case, defendants rested and moved for a directed verdict on the ground that it conclusively appeared that plaintiff had been guilty of contributory negligence. The motion was granted and the sole question here is whether the court was justified in its ruling or should have submitted the question of contributory negligence to the jury. A number of photographs of the scene of the accident were offered in evidence and have assisted us to understand the situation.
Q. You didn’t look up toward the direction from which No. 30 came when you got up to the first track, did you?
A. Yes, sir.
Q. You had 20 feet to go* before you got to the first rail and when you got to the first rail did you look toward the direction from which No. 30 came?
A. Yes.
Q. You couldn’t see her, could you?
A. No, sir.
Q. Didn’t you see her?
A. No, sir.
Q. Then you went over that track to the next one and on the next one you were hit?
A. Yes, sir.
Q. Then No. 30 was somewhere down that track, but you couldn’t see her, is that right?
A. Yes, sir, she was there coming.
Q. But you didn’t see her?
A. I didn’t see her until just before I got struck.
Q. You kept on looking to see?
A. Yes, sir.
Q. Kept looMng in that direction?
A. Yes, sir.
Q. And you didn’t see her?
A. No, sir.
Q. You knew that would be the track they would come on, didn’t you?
Later on, this was his testimony:
Q. When you got up to the first rail, you could see beyond the corner of the caboose?
A. I could see her from 200 feet from where I undertook to make the crossing.
Q. You didn’t look any more, did you?
A. Not until I got up on the other track.
Q. When you got hit?
A. Yes, sir.
Q. And that is when you looked again?
A. Yes, sir.
Plaintiff’s testimony is contradictory. Whether the witness is a party to the action or not, the rule is that the jury and not the court must determine the effect of his contradictory testimony. In re Hess’ Estate, 57 Minn. 282, 59 N. W. 193; J. I. Case T. M. Co. v. McKinnon, 82 Minn. 75, 84 N. W. 646; Price v. Washington Life Ins. Co. 92 Minn. 251, 99 N. W. 810; Grignon v. Minneapolis & St. L. R. Co. 130 Minn. 36, 153 N. W. 117.
Defendants contend that Marty v. Chicago, St. P. M. & O. Ry. Co. 38 Minn. 108, 35 N. W. 670, fits the facts in this case. In that case plaintiff started up immediately after a passing train had cleared the crossing and while it shut off his view of the other tracks, when a trifling delay would have enabled him to obtain a clear view of several hundred feet. In the instant case, plaintiff waited until the freight train was 200'feet beyond the crossing and until he had a view of the eastbound main for some distance west of the crossing.
The evidence makes this a border-line case upon the question of contributory negligence. In Schmidt v. Great Northern Ry. Co. 83 Minn. 105, 85 N. W. 935, it was said that this court approaches the defense of contributory negligence “with an inclination to sustain a verdict to the, contrary if the matter is fairly open to discussion or doubt.” The rule is that, if there is a fair doubt as to the
There was evidence that the freight train was a long one, that, when plaintiff' started to cross, it still interfered with his view of the eastbound track, and that there is a bend in the tracks about one-half mile west of the crossing. Naturally the noise of the truck and the freight train would make it difficult to hear the passenger train. This was a reason why plaintiff should have kept a particularly vigilant lookout. If he had, it is difficult to understand how he failed to see the approaching train. However, it may be that the long freight -train intercepted his view. At least we cannot say that if he continued to look to the west, as he testified he did, he must have seen the train.
We are of the opinion that plaintiff should have been allowed to go to the jury on the question of contributory negligence, and hence the order denying a new trial must be reversed.
Order reversed.