According to the verdict of the jury, defendant’s negligence caused a collision between its train and plaintiff Regali’s truck, where the company’s tracks cross Twenty-first Avenue West, in the city of Duluth, which damaged thе truck in the sum of $1,858.95. Regali carried insurance with the Employers Indemnity Company against loss from collision and the indemnity company paid him for a part of the loss sustained. The insurance company joined as plaintiff. The appeal is from the order denying defendant’s motion in the alternative for judgment or a new trial.
Three grounds are assigned for a reversal of the order: (1) The evidence does not prоve defendant’s negligence; (2) it conclusively shows the contributory negligence of the driver of the truck; and (3) there was misconduct of plaintiffs’ attorney which entitles to a new trial. The last ground may be disposed of by the remark that the statement of the attorney in his final argument to the jury, to which the assignment of error is directed, seems to be no more than an expression of his opinion as to the persuasiveness of the evidence adduced by plaintiffs, and, if anything at all bordering on the improper can be found therein, it was rendered harmless by the cautionary instructions of the court upon the subject.
South of the crossing mentioned is a dock from which Regali and others were engaged in hauling sand north on Twenty-first Avenue West, a paved street over an up-grade from the dock to the crossing. Beside the dock two or three industrial plants south of the crossing are reached by this street. North of the crossing business blocks line the street on both sides down to the tracks. Next to the tracks
The сollision occurred shortly after 11 o’clock p. m. October 19, 1920. The night was dark, but not foggy. For some weeks trucks had been hauling sand from the dock across this crossing night and day, so that the drivers were familiar with the loсation and the obstructions to a view of approaching trains. This hauling had continued for such a length of time that the jury might infer that this train crew knew thereof. While Couture, Regali’s driver, did not admit that he knew that defendаnt was in the habit of operating a train past this street every night near the time of the accident, he did say that trains might there be expected at any time. As Couture was driving the truck north loaded with sand, he ran on second on account of the grade. He estimates the speed at 4 or 5 miles an hour. One Baxter was coming south with a truck and approaching the crossing at the same time. The front lights of both trucks werе burning. Defendant was then coming towards the street from the east with a locomotive pushing six box cars and one gondola car, the latter being the front car as the train was moving west. The switching crew estimate the speed of the train at 4 or 5 miles an hour, while Couture thinks the speed was nearly twice that mileage. He, however, did not see the train before it came in contact with his truck.
The train crew testified that one man was on the southwest corner of the gondola car with a lighted lantern, another on top of the box car next to it, and the third on the car next to the engine to relay the signals to the engineer. The two men on the westerly end of the train noticed the truck and its front lights when it was about 100 feet from the crossing, but assumed it would stop. When it did not, and, evidently, when it was upon the track the switchman on the gondola сar jumped off and signaled for an emergency stop.
The complaint charged and the court submitted five allegations of negligence, viz: (1) A dangerous rate of speed; (2) lack of proper control; (3) lack of watch or lookout at the crossing; (4) want of signals or warning of the approach of the train; and (5) the insufficiency of the lights on the train. Defendant concedes the fourth specification of negligenсe was for the jury. There was no motion or request to withhold any of the others from them. However, if there was no evidence warranting the submission of any one or more of the charges of negligence submitted, a new trial must result. La Mere v. Railway Transfer Co. of City of Minneapolis,
The cоurt was careful to charge that liability did not follow a mere finding that defendant was negligent as to any of the items specified, unless the jury could also find that such negligence was as to such item a proximatе contributing cause of the collision. In considering each item, and as affected by the others, surrounding facts which emphasized the inference of negligence should not be overlooked. The record indicates that a roundhouse was in the direction towards which Couture would have to look for the approach of this train. A- roundhouse is usually associated with lights, and, the night being dark, the lantern on top of this train might be mis
Particular stress is laid on the рroposition that the situation did not warrant the submission of negligence for failure to maintain watchman, gates or signal bells at this crossing. A mere inspection of the photographs in evidence differentiates the case at bar from Hume v. Duluth & I. R. Co.
Criticism is made of the submission of the item whether the train was not under proper control. It was operated by a crew whose duty it was to keep a lookout, and control its movement if a collision at a crossing was imminent. Whether the рroper look-out and control was exercised we deem a question for the jury. The two
Contributory negligence was not established as a matter of law. True, when darkness obscures and misleads the vision, greater vigilance is required in crossing a railroad track than in broad daylight. Nevertheless, in determining the question of negligence the jury have to take into account that darkness gives a different appearаnce to surroundings than does daylight.
The evidence is silent as to the hand in which the man on the first box car held his lantern. Usually men hold it in the right hand and face the way in which they are moving. If so in this case, his body or legs might have hid thе rays of the lantern from Couture. Both the position of the man on the gondola car and its lower level suggest the possibility of the light from that lantern being similarly intercepted by the arm or body of the man and the sewer pipe pile. It is a significant fact that the driver of the truck from the north also failed to notice the approach of the train until hit, although the lights of Couture’s truck might have interfered at some pоint with his view. Both drivers testify that they looked to the east to discover whether trains were approaching, but could not see the train or any light that they understood to be upon moving cars.
Most of the casеs cited by defendant, where contributory negligence was held to be shown as a matter of law, were daylight collisions, like Anderson v. Great Northern Ry. Co.
Brown v. Milwaukee & St. Paul Ry. Co.
We think contributory negligence was for the jury.
The order is affirmed.