80 Minn. 508 | Minn. | 1900
This is a personal injury case brought by the plaintiff to recover for damages received by his minor son, aged five years, while upon the defendant’s tracks, to which he had gone shortly after leaving the plaintiff’s residence, about two or three blocks away.
The place of the accident was within the city limits of Duluth, and some two or three hundred feet north of the north end of the Interstate bridge between West Superior, Wisconsin, and Duluth, Minnesota, across the Bay St. Louis. Commencing near the bridge, and running northerly, are defendant’s double tracks; one being used for outgoing trains, and one for incoming. South of the point of the accident several roads unite, using the same bridge across the bay. The double tracks extend northerly some fifteen hundred feet to the switching or freight yards of the defendant company. It is about two miles from the scene of the accident to the Duluth Union depot. In the vicinity of the bridge and northerly there are many houses, evidently of a very poor character, occupied largely by laboring people. For some distance north of the bridge, and at the point of the accident, the tracks are on an embankment fifteen feet high at the highest point. The tracks reach the surface before coming to the switch or freight yard. The defendant’s yard ex
There are a large number of assignments of error, but, as we look at the case, we are required to consider but two. The defendant’s tracks are not fenced north of the bridge. The court was requested by the plaintiff’s counsel to charge the jury that it was the legal and absolute duty of the defendant to fence its tracks at the point where the boy first walked upon the tracks, and at the point, a short distance away, where he was injured; and the court was also requested to charge that the defendant’s failure to fence the tracks at these points was, in law, evidence of negligence. The court refused to give either of these requests, but left the question of negligence for the determination of the jury upon all of the facts. We think this was error.
The evidence in respect to the necessity and practicability of fencing was that given by the defendant’s superintendent, who said that the only reason why the defendant did not fence at this particular place was that the track crossed a good many streets, which would have to be left open, so that the fence could only be between them, and therefore that a great number of cattle guards would be required, which would be dangerous for employees while engaged in switching. The statutory duty of the defendant company to fence its tracks is imperative, and no part thereof is excluded in terms. G. S. 1894, §§ 2692-2695; Hurt v. St. Paul, M. & M. Ry. Co., 39 Minn. 485, 40 N. W. 613. This duty applies as well within the limits of an incorporated city as without. Greeley v. St. Paul, M. & M. Ry. Co., 33 Minn. 136, 22 N. W. 179. There is an exception, by implication, to this statutory rule, where public necessity or convenience requires it, such as station grounds; but the burden of showing that it is not bound to fence its tracks, where unfenced, rested upon the company. Cox v. Minneapolis, S. Ste. M. & A. Ry. Co., 41 Minn. 101, 42 N. W. 924.
This implied exception has been held as to such places as depot
Sections 2692-2694 were originally sections 1-8, Laws 1876, c. 24. Another section of the chapter just mentioned (section 4) was amended (Laws 1877, c. 73) so that all companies failing or neglecting to fence were made liable for all damages sustained by any person in consequence of such failure or neglect. By another act (Laws 1877, c. 107 — G. S. 1894, § 2055) it was provided that a legal fence could be made of four smooth wires, the lower one to be not less than sixteen nor more than twenty inches from the ground. It was then held (Fitzgerald v. St. Paul, M. & M. Ry. Co., 29 Minn. 336, 13 N. W. 168) that the statute imposed no liability in case children were injured because of failure or neglect to fence. But later, in Rosse v. St. Paul & D. Ry. Co., 68 Minn. 216, 71 N. W. 20, the Fitzgerald case was overruled, and it was held that the broad language
Order reversed, and a new trial granted.
LEWIS, J., haying been of counsel, did not sit.