Schulz v. Chicago, Milwaukee & St. Paul Ry. Co., 57 Minn. 271

57 Minn. 271 | Minn. | 1894

Canty, J.

Plaintiff’s intestate was in the employ of defendant us a section man on its railroad. At the time of the injury in question he was at work cutting weeds with a shovel along the side of its track within the corporate limits in the southern part of the city of St. Paul. He cut a space about six feet wide along outside of the rail, and stood in the middle of this space as he worked, in a stooping position, with his back to the approaching train of defendant, turning partly to one side and then to the other as he proceeded. Running parallel with this track, and about 100 feet away from it, was the track of another railroad company, on which a train was at the time approaching from the opposite direction. About the time the last car of this train passed by him, and as he turned partly towards the track of defendant on the side of which he was at work, the train approaching from behind him struck him on the side of the head, knocked him down, and from the injuries received he died shortly after-wards. The section man who worked across the track directly opposite him, and the other men who worked with him, testified that they heard no sounding of the whistle or ringing of the bell or other warning of the approach of defendant’s train, and it is fairly to be inferred from the evidence that deceased continued his work, and was wholly unaware of the approach of this train until struck by it as he turned towards the track in a stooping position, in the act of cutting weeds. At the close of plaintiff’s testimony the court dismissed the action, and, from an order denying a motion for a new trial, plaintiff appeals.

We are of the opinion that the court below erred in taking the case from the jury. True, it is a general rule that section men assume the risk of being injured by approaching trains, that it is not under ordinary circumstances customary to give them notice or warning of the approach of trains, and that they must ordinarily look out for themselves; still there are exceptions. The track on which this train was approaching was straight for about 1,800 feet, and the deceased could be seen for that distance before the train reached him. It was a question for the jury whether the persons managing the train, if they had been exercising proper care, would not have discovered that deceased was unaware of its approach; that the noise made by the other train approaching from in front of him prevented him from hearing this train approaching from behind him, and that he was in a perilous position, which made it their duty to give him some proper signal to warn him of its approach. Erickson v. St. Paul & Duluth R. Co., 41 Minn. 500, (43 N. W. 332.) The evidence tended to prove that no such signal was given. His contributory negligence, under the circumstances, is also a question for the jury.

Plaintiff gave in evidence an ordinance of the city of St. Paul prohibiting the running of trains within the city limits at a. greater rate of speed than four miles per hour. While there was evidence tending to prove that the train ran at the rate of thirty or forty miles per hour, it also appeared by the evidence that this part of the city was sparsely settled, and there was no street crossing the track for about two miles. The ordinance was unreasonable and void as between the railroad company and the general public. Evison v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 370, (48 N. W. 6.) Whether such an ordinance has any application at all as between the company and a section man as to what is a negligent rate of speed, Bengtson v. Chicago, St. P., M. & O. Ry. Co., 47 Minn. 486, (50 N. W. 531) it is not necessary to determine. It appeared by the evidence that the defendant usually ran its trains at this place at this high rate of speed, which the deceased must necessarily have known, and hence he assumed the risk.

The other assignments of error are without merit.

The order appealed from is reversed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 192.)