160 Minn. 471 | Minn. | 1924
Lead Opinion
The appeal is from an order denying defendant’s motion in the alternative for judgment notwithstanding the verdict or a new trial.
The action was to recover for the death of plaintiff’s intestate, Lewis Iverson, alleged to have been due to the negligence of defendant causing one of its passenger trains to collide with the automobile in which he was riding, the car being driven by its owner, Ed Iverson, a brother of Lewis. The place of the fatal collision was where Central avenue in the village of Brooten is crossed by the main track of defendant’s railroad, and occurred at 2:08 p. m. on August 11, 1922. The train was an east-bound through train, scheduled not to stop at Brooten. The population of the village is about 700. Central avenue is the main street and runs north and south. Defendant’s right of way crosses this street at an angle of 49 degrees, running from the northwest to the southeast. The stores and residences are mostly to the south of the tracks. There are some industries north of the right of way and east of Central avenue, but none to the west thereof north of the tracks. Lewis Iverson, 49 years old, lived on a farm south of Brooten. The brother Ed, 56 years old and unmarried, was at times a member of Lewis’ household. Ed owned a Chevrolet touring car. He worked for Lewis on August 9 and 10. On the eleventh, as Lewis was about to hitch up his team to go to Brooten with a can of cream and for some supplies and repairs, Ed suggested that, since he also wished to go to town, the trip could be made in his automobile. This was done. The cream was delivered at the creamery and Ed drove to the various places in Brooten where Lewis had business to transact. This finally took them north of the defendant’s railroad and east of Central avenue to the Swift & Company plant, a little east of the depot. The road from there runs westerly in an irregular course some 200 feet distant from defendant’s main track, and, as this
Defendant insists that it should have judgment because no actionable negligence was proven against it; that the negligence of Ed Iverson was the sole proximate cause of Lewis’ death, and that the latter’s contributory negligence conclusively appears.
Plaintiff charged defendant with running at a negligently high speed without sounding the whistle or ringing the bell, and without providing automatic signals, gates or watchman at this dangerous and much used crossing. High speed may not in itself constitute negligence, but when considered in connection with the absence of warnings of a train’s approach to a dangerous city or village crossing it may be of much significance. There was sufficient conflict in the evidence so as to make it a fact for the jury to determine whether there was a failure to sound the whistle or ring the bell for the crossing. We are also of the opinion that, as a question of
While the evidence is somewhat confused as to what use Lewis made of his senses to discover the approach of the train, the jury could find that he did discover it before the automobile had gone more than 15 or 16 feet of the distance from the point where the occupants first could obtain a clear view of the train, and that he at once warned the driver. It is clear the latter was negligent, for, according to his own story, he did not look to see whether a train was coming until within 10 or 12 feet of the tracks, or so close that he could neither stop nor swerve the car from the path of the locomotive. But the jury could find that Lewis’ discovery of the train was timely as well as his warning to Ed, so that the latter had ample opportunity to stop before even reaching the passing track. It was also for the jury to say whether Lewis took the measures for his own protection that an ordinarily prudent person would have taken, after Ed failed to heed his warning. The only witness besides an 8-year-old boy who testified to what Lewis did just prior to the collision was Ed, and his testimony came haltingly through an inefficient interpreter. Lewis being dead, the presumption is that he used due care to protect himself, until the contrary appears. Here the physical facts demonstrate that he had an oppor
The jury having a basis for finding defendant negligent in the particulars charged and the decedent free from contributory negligence, it cannot be held as a matter of law that Ed’s negligence was the sole cause of the fatal collision. Had defendant given proper notice of the swift moving train’s approach to this dangerous crossing, the jury could find that Ed’s attention would have been aroused in time to avoid the danger. As it was, the negligence of both concurred in causing Lewis’ death. Gowan v. McAdoo, 143 Minn. 227, 173 N. W. 440, and cases therein cited. From the time Lewis called out to Ed and he failed to act, the negligence of both Ed and defendant was in operation and continued thereafter to cooperate to bring about the collision, so that Ed’s negligence cannot be said to be the sole proximate cause of his brother’s death. For reasons hereinbefore stated we do not think defendant entitled to judgment non obstante.
The learned trial judge held as a proposition of law that Ed’s negligence was not imputable to Lewis and so charged the jury. Error is assigned upon this instruction. One riding in a vehicle without any right of control over the driver’s management thereof is not chargeable with the driver’s negligence when such negligence concurs with that of a third person to cause injury to the one riding. Dunnell, Minn. Dig. § 7038 and cases therein cited. But it is also the law that the negligence of a servant or agent is imputable to a master or principal who is plaintiff in injury actions. La Riviere v. Pemberton, 46 Minn. 5, 48 N. W. 406; Kokesh v. Price, 136 Minn. 304, 161 N. W. 715, 23 A. L. R. 643. Also, if the rider and the driver are engaged in a joint enterprise in the trip, the latter’s negligence may be imputed to the former so as to defeat a recovery. At the trial the point was strongly pressed that the two brothers took the trip as a joint enterprise. We think the cases of Kokesh v. Price, supra, Finley v. Chicago, M. & St. P. Ry. Co. 71 Minn. 471, 74 N.
There are errors assigned upon many portions of the charge. We discover no serious defects calling for criticism from defendant. The one directing the jury to consider obstructions to the view of the train such as cars on the passing track, was plainly for the purpose of determining whether this was an extra hazardous crossing requiring automatic bells, gates or watchman, and was not descriptive of the obstructions the occupants of the car had on that day to a view of the train.
For the error in ruling as a matter of law that the negligence of Ed could not be imputed to Lewis Iverson there must be a new trial.
Concurrence Opinion
(concurring in part.)
I concur with Mr. Justice Holt, except that I think the case fairly within the principal of the “joint enterprise” cases.
Dissenting Opinion
(dissenting.)
I dissent to that part of the opinion that holds that there is sufficient .evidence to take to the jury the question of whether the driver of the auto was the agent or servant of the deceased.
