119 Minn. 347 | Minn. | 1912
Action for damages for the alleged wrongful death of plaintiff’s intestate in which plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment or a new-trial.
The facts are as follows: Defendant operates a line of railroad at grade over and across Fifty-seventh avenue in the city of Duluth. Two main tracks and one side track extend over the avenue, at an-angle of about forty-five degrees. Trains from Duluth pass over the north main track, and those going into Duluth over the south track. The side track is about nine, feet from the south main track, and runs parallel with it across the avenue. The crossing is in a well-settled part of the city, and is much frequented and made use of for public traffic and travel. On December 23, 1910, at about 6:30 o’clock in the evening decedent was struck by a train passing over the south bound track into Duluth' and killed. This action followed.
The complaint charged three distinct grounds of negligence, namely: (1) The failure of defendant to give any warning of the approach of the train, by ringing the bell or sounding the whistle of the engine; (2) excessive and unlawful speed of the train, and (3) the failure to provide either gates or a watchman at the crossing, contrary to the municipal regulations of the city. There was some evidence tending to show a failure to give the usual signals, but that ground of negligence was abandoned on the trial, and the question was withdrawn from the jury. The verdict rendered in favor of the-engineer, a party to the action, negatived negligence in respect to the speed of the train, and, so far as the alleged negligence of the railroad company is concerned, the verdict was based entirely upon its failure to provide gates or a watchman at the crossing as required by the city regulations.
1. The evidence tends to show that this particular avenue is in a well-settled part of the city, and that it was much used by both pedestrians and teams. Buildings for residence and other purposes are situated upon either side of the avenue, and the avenue was used at the point where the railroad crosses the same by the people living in that vicinity. The crossing was considered by the city council as ■sufficiently dangerous to require a watchman or gates for the protection of those making use of the same, and a resolution, requiring the company to maintain gates or a watchman, was formally passed and served upon defendant several months before the accident here in question. The defendant fathed to comply with the requirements of the resolution, and at the time of the death of the decedent there were neither gates nor watchman at the crossing. We are of opinion, and so hold, that the question whether defendant was negligent in not providing a watchman or gates was one of fact and properly submitted to the jury. And whether the municipality lawfully could require the presence of a watchman or gate tender at all hours of the night, the fact remains that the presence thereof at the time in question, an early hour in the evening, might have prevented the death of •decedent; at least a compliance with the municipal regulations would liave been a timely warning to decedent, and relieved defendant from the charge of negligence. It might be unreasonable to require a watchman at such a crossing at all hours of the night, but the fact is well known that travel on such streets in our large cities is more ■eonjested at the close of the business day than at other hours, and greater precautions are necessary for the protection of pedestrians. This question was properly submitted to the jury.
2. Was decedent guilty of contributory negligence as a matter of law? We think, within previous decisions of the court in similar cases, the question must be answered in the negative.
Decedent resided within a block and a half of and was familiar with the crossing and the operation of trains by the railroad company.
The fact that decedent was familiar with the crossing is not conclusive against him. Struck v. Chicago, M. & St. P. Ry. Co. 58 Minn. 298, 59 N. W. 1022. In that case decedent bad formerly been a section band on the part of the road including the crossing where
The presumption of due care on the part of the decedent in cases of this kind is not a new doctrine. It has been applied in varied! forms of expression for many years in substantially similar cases. It embodies, however, no particular elements differentiating it from other presumptions of right conduct, and is not conclusive. It may be overcome by direct proof, or by facts and circumstances which lead to the conclusion that due care was not exercised. It matters; not whether the evidence overcoming the presumption appears from plaintiff’s case in chief or from the evidence offered by defendant. It is sufficient in either case to fully destroy and take away the effect of the presumption. It sometimes appears so conclusively that due-care was not exercised that the trial court is justified in dismissing the action or directing a verdict for defendant. In the case at bar the evidence made the question one of fact.
Order affirmed.