144 Minn. 309 | Minn. | 1919
Lead Opinion
Two actions to recover for the death of plaintiff’s intestates, caused by a collision between an automobile in which they were riding and one of defendant’s passenger trains. The collision occurred at about 9:80 o’clock in the evening on August 30, 1918, at a crossing of the highway with
The negligence charged against the defendant was, running its train at an unlawful and dangerous rate of speed and failing to give the required signals as it approached the crossing. The answers contained allegations of contributory negligence on the part of the deceased persons. It is not questioned but that there was testimony sufficient to have justified the jury in finding the defendant guilty of negligence. The trial court submitted to the jury, whether or not the two deceased persons were guilty of contributory negligence. The correctness of this instruction is the sole question here for consideration.
Defendant’s line of road extends in a northwesterly direction from Albertville to Monticello, a distance of about ten miles. William, Armella and Bertha Praught, brother and sisters, aged respectively 26, 28 and 22 years, lived together upon their father’s farm near Albertville and within one mile of the railroad track. The highway extends west past their home, thence north to the crossing in question. At that point the track is straight, with no obstructions, so that an approaching train might be seen from the highway where it intersects the right of way from the south for a distance of about 2,000 feet. On the evening in question, William, in company with his two sisters, started from their home in his Ford ear to go to a dance beyond Monticello, the sisters sitting in the rear seat, and he alone in front driving. They traveled at the rate of from 20 to 25 miles per hour, and upon approaching the right of way slowed down to eight or ten miles. As the automobile reached the track, it came into contact with a rapidly moving passenger train from the northwest, the pilot striking the front wheel and radiator, completely demolishing the car, injuring the driver and killing the two sisters.
But two persons who witnessed the accident testified at the trial. The engineer testified that he first saw the automobile as it approached the right of way when the engine was within about six or seven hundred feet of the crossing; that the headlight was shining brightly, the bell ringing, and that he immediately sounded the whistle; that the train was running about 45- miles per hour; that when the whistle sounded the automobile came up within eight or ten feet of the track and stopped, and
It is apparent from the testimony that the engineer saw the automobile long before any of the occupants of the automobile saw the train. If it be true, as testified to by the engineer, that the automobile came to a full stop when within eight or ten feet of the railroad track, and, as the locomotive approached the crossing, suddenly started up and was instantly struck by the engine, it would be almost impossible to say that the passengers, having nothing to do with the driving of the car, could have been guilty of contributory negligence; but if, when the automobile approached the right of way, it slowed down to eight or ten miles and proceeded across the track at that rate, then, under the circumstances disclosed by the evidence, the issue of contributory negligence on the part of the passengers became a question for the jury.
In Howe v. Minneapolis, St. P. & S. S. M. Ry. Co. 62 Minn. 71, 77, 64 N. W. 102, the plaintiff was riding in a wagon driven by another, and was injured in a collision between the wagon and one of defendant’s trains at a crossing. Plaintiff’s testimony, which was the only testimony as to what he did, was that he looked both ways for approaching trains and saw none until within about 25 feet of the crossing when it was too late.
In the case of Finley v. Chicago, M. & St. P. Ry. Co. 71 Minn. 471, 74 N. W. 174, plaintiff was riding with her husband, at his invitation, in a wagon drawn by his horses which he was driving. He was negligent in failing to look and listen before .attempting to cross the railroad track. Held, it was a question for the jury whether she was guilty of contributory negligence in failing to look and listen or to observe that her husband was not using due care, if such was the fact. See also Wilds v. Hudson River R. Co. 29 N. Y. 315, 325; Bush v. Union P. R. Co. 62 Kan. 709, 64 Pac. 624; Donnelly v. Brooklyn City R. Co. 109 N. Y. 16, 15 N. E. 733; Brickell v. N. Y. Cent. etc. R. Co. 120 N. Y. 290, 24 N. E. 449, 17 Am. St. 648; Bresee v. Los Angeles Traction Co. 149 Cal. 131, 85 Pac. 152, 5 L.R.A.(N.S.) 1059; see note 8 L.R.A.(N.S.) p. 597; note L.R.A. 1915A, p. 766.
While it cannot be said in the present case that the passengers riding in the automobile were guilty of contributory negligence as a matter of law, it is our opinion that the court properly submitted to the jury the question of their negligence.
Affirmed.
Dissenting Opinion
(dissenting).
In my judgment there was no question of contributory negligence of
On February 13, 1920, the following opinion was filed:
Per Curiam.
After a reargument of this cause and due consideration of the matter, a majority of the court are of the opinion that the issue of contributory negligence should be passed upon by another jury, and the order appealed from will therefore be reversed and a new trial granted. The members of the court agreeing to that conclusion are somewhat impressed with the idea that the inadvertent language of the trial cou-rt in its instruction to the jury as to the dirty of decedents for their own protection in crossing the railroad track, created an adverse impression on the minds of the jury, resulting in the verdict affirming contributory negligence on their part. With a new trial and this feature of the charge omitted, no doubt a fair and impartial verdict upon the particular issue may be had, though the new trial will be had upon all the issues in the case.
Reversed.
Concurrence Opinion
I concur in a reversal. I think'it should be put upon a definite ground of error, and I would put it upon the ground that there was no evidence for the jury upon the question of contributory negligence.
Concurrence Opinion
I concur in this.
Dissenting Opinion
(dissenting).
I doubt that there is sufficient evidence in this record to support a finding that plaintiff’s intestates were guilty of contributory negligence. If not it was error to submit the issue. They being dead there can be no explanation from them as to why they failed to caution the driver, and the presumption obtains that they exercised due care for their own safety. But even were it conceded that the issue of contributory negligence could be submitted, it seems to me the learned trial court prejudicially affected plaintiff by this part of the charge upon which error is assigned: “Even passengers in an automobile approaching a railroad crossing cannot sit like dumb beasts and pay no attention to their own safety or the conditions and circumstances surrounding them.”
