Nos. 19,533—(176) | Minn. | Feb 18, 1916
Action to recover for death of plaintiff’s intestate. The case was tried to a jury which returned a verdict for the plaintiff. Defendant moved for judgment notwithstanding the verdict, which motion having been denied, and judgment entered, defendant appeals.
Plaintiff’s intestate, John Kennedy, at the date of his death was, and for about seven years prior thereto had been continuously in the employ of the defendant as a flagman at the point where defendant’s railroad tracks cross Boulevard street in the city of Montgomery, Minnesota. On the twenty-third of April, 1913, while Kennedy was performing his duties as flagman, a train crew was engaged in switching operations near the crossing. A string of cars pushed ahead of an engine was moving toward the crossing from the south for the purpose of being coupled to a car standing near the south line of Boulevard street. The brakes on this standing car were not set. The other cars were driven with considerable force against the standing car. The couplings did not engage and the standing car, driven by the impact of the train, rolled rapidly across Boulevard street, struck the deceased, throwing him down, running over and killing him. No signal or warning of any kind was given to deceased. No bell was rung or whistle blown. No one was in charge of the standing ear or near it.
The complaint, which has been held sufficient (Sheehy v. Minneapolis & St. L. B. Co. 126 Minn. 133" court="Minn." date_filed="1914-06-19" href="https://app.midpage.ai/document/sheehy-v-minneapolis--st-louis-railroad-7977161?utm_source=webapp" opinion_id="7977161">126 Minn. 133, 147 N. W. 964), alleges that a custom existed that the defendant, before undertaking to move cars over the crossing or doing anything that might cause the cars to be moved, should give a signal or warning; that a custom existed of setting the brakes whenever a ear was left standing; and that a custom existed of moving slowly when making couplings.
Plaintiff elaims that the defendant violated these customs, and that such violation was the proximate cause of the injury which caused the death of plaintiff’s intestate.
The jury were instructed that, if they found that any one of these customs was violated and that such violation was the proximate cause of the injury, they might find a verdict for the plaintiff. The evidence as to the existence of each of these customs was somewhat conflicting. One of the plaintiff’s witnesses on cross-examination flatly contradicted some of the testimony given by her on her direct examination. On redirect examination she reaffirmed the testimony first given, asserting that she was confused and frightened and that she misunderstood some of the questions. Her testimony was corroborated in some particulars by other witnesses for plaintiff, and some of defendant’s witnesses, on cross-examination, made admissions tending to establish the facts as claimed by plaintiff.
It is not contended that any of these customs was unreasonable. • Due regard for the safety of the public and for its own interests would suggest to the defendant the propriety of requiring brakes to be set on cars standing loose on its right of way at or near a street crossing. The same consideration would urge that in coupling such cars excessive force should not be used, and that some warning should be given when a train or locomotive was about to cross a street or kick or shunt cars across it. Seasonable prudence might require precautions to be taken at a railroad crossing, even though a railroad company had protected the crossing by placing a flagman thereon. We are not prepared to say that the jury did
The evidence in the instant ease is not so conclusive as to compel such a finding.
Judgment affirmed.