84 Minn. 258 | Minn. | 1901
Action for personal injuries sustained by plaintiff’s intestate at defendant’s railway crossing over a street in the village of Hawley. Plaintiff had a verdict. Defendant moved for judgment notwithstanding the same, under the statute (Laws 1895, c. 820), which was directed in its favor. From this judgment plaintiff appeals, bringing the entire record, including the evidence, into this court for review.
Hawley is a village of seven hundred inhabitants, having a station depot, with platforms surrounding the same; also the side tracks usual at such places. To understand the real question presented on this review it is necessary to state that the principal thoroughfare of Hawley (Sixth street), upon which the stores and public places are situated, runs north and south across the main track of defendant’s road adjacent to the west side of the depot platform. The main track runs east and west past the south front of the depot. North of the main track, and fifty-three feet distant from the same, is a side track, which has been designated as the “passing'’ track. The depot' is surrounded by platforms, and adjacent to the same along the west side of Sixth street is a sidewalk running north and south over the several tracks at the station.
At the time in question, October 12, 1899, plaintiff’s intestate, who was thoroughly familiar with the situation above described, had occasion to pass over the railway crossing upon the sidewalk referred to. He walked from the north of the passing track southerly along the sidewalk. At the instant he stepped upon the main track he was struck by defendant’s engine, hauling a freight train of sixty-five cars, coming from the east, and running at the rate of thirty to thirty-five miles an hour. About ten minutes previous to the injury to intestate, one of defendant’s passenger trains had preceded the freight going east, and the jury were probably authorized to find that both trains made considerable noise before and at the time of the accident, which might have prevented intestate from distinguishing either from the sound occasioned thereby.
The evidence shows that the whistle of the freight train had
We are unable to find in the record any excuse for intestate’s disregard of his obvious duty to himself to use his eyesight at the time when he could easily have discovered the danger of collision, which was up to the very moment he stepped upon the main track. Until then he had full control of his movements. He could, by the slightest movement of his head towards the east, have discovered his hazard, and by a. check in his movements have avoided the same. Under such circumstances his obvious want of care must preclude a recovery in this case. Carney v. Chicago, St. P., M. & O. Ry. Co., 46 Minn. 220, 48 N. W. 512; Schneider v. Northern Pac. Ry. Co., 81 Minn. 383, 84 N. W. 124. In the latter case the inability to hear the approaching train was held not to- excuse the failure to exercise the sense of sight to discern the same.
Plaintiff strenuously urges that, notwithstanding his intestate may have been negligent, yet the servants in control of the engine of the freight train could, with ordinary care, have discovered his danger, and their failure to ring the bell or make some effort to avoid the accident after they might have seen intestate authorized the submission of the case, notwithstanding such contributory negligence. We are unable to adopt this view.
While the negligence of the defendant might have required a submission of this case to the jury on that issue, yet the negligence of the intestate directly contributed to the unfortunate result which followed, and there is no evidence, under the circumstances, which tends to show that the servants of the train, after discovering his danger, acted either wilfully or with such a wanton disregard of life or recklessness in view of the facts disclosed as will excuse the contributory negligence of intestate. Lando v. Chicago, St. P., M. & O. By. Co., 81 Minn. 279, 83 N. W. 1089.
Judgment affirmed.