87 Minn. 253 | Minn. | 1902
Lead Opinion
First cause of action: At a point one mile from the village of Eden Valley a highway crosses defendant’s railroad at an angle ■of about 45°. The right of way was fenced at this point, and the distance from the fence to the center of the track was fifty feet, and from the fence, running parallel to the highway, to the center of the wagon road, seventy-five feet. The space on both sides of the right of way was, for a considerable distance, covered with brush and timber, which obstructed a view of the track by a traveler on the highway until reaching the right of way fence. From the portion of the highway which crossed the right of way the view was unobstructed for a long distance, both east and west. Plaintiff’s son, a lad sixteen years of age, approached this
It is admitted that defendant was guilty of negligence in rapidly backing its train over the crossing without giving the ordinary signals. The only question is, was the boy guilty of contributory negligence? We must answer the question in the affirmative.
No exception can be made on account of his age, and the evidence discloses the fact that he was a boy of average intelligence and experience. While the team was gentle, and it was not in itself an act of negligence to leave them- to travel without a driver, yet it is clear that had the boy remained in the wagon, in direct control of the horses, he would have been in a position to discover the approaching train and control the team; and if he left such point of advantage, and for his own convenience walked behind the cows, he thereby placed himself and the property in a more hazardous position, because by so doing he reduced his chances of discovering approaching danger. Therefore, if his view was obstructed before reaching the right of way by reason of the disadvantage of his position at the rear, it was his duty to go forward and look for approaching trains before starting across the track; and, having failed so to do, he must be held to have contributed to the injury which followed.
2. Second cause of action: Eden Valley was an incorporated village, wherein were established defendant’s depot, water tank, and coal sheds upon the main track, two elevators and a lumber yard upon the north siding track, and in addition there was a
The court instructed the jury to return a verdict for plaintiff for the value of the stock killed, upon the ground that it appeared, as a matter of law, that the cattle entered upon the railroad track by reason of the absence of a fence, and that it was the duty of the company to maintain fences at the point where the cows were killed. We are unable to agree with the court on either proposition. It was clearly for the jury to determine from the evidence, under proper instructions, whether or not the cattle entered upon the right of way at a point where the company was or was not required to fence.
The other question may be stated as follows: Was that portion of the track between the bridge and the west switch, a distance of one hundred fifty feet, reasonably necessary for the accommodation of defendant’s employees in cutting off cars and in making
The question turns upon the effect the cattle guard would have in the vicinity. From the evidence on behalf of respondent, it appears that for the purpose of working a switch only six or eight feet of ground are necessary, and it is urged that defendant should be required, to construct its cross-fence within eight or ten feet of the switch. On the other hand, the testimony on behalf of defendant tended to show that this switch was within what may be termed the depot grounds or switching yard of the village; that it was frequently used in switching cars upon the several side tracks mentioned, and, if a cross-fence was required to be maintained in that vicinity within a few feet of the switch, it would necessitate putting in a cattle guard; and that a cattle guard is a dangerous thing, increasing liability of employees to accident in charge of defendant’s trains. The evidence tends to show that brákemen, in handling the switch and in cutting off cars, were required to pass back and forth over the track for the entire distance between the switch and the bridge, and that the presence of the cattle guard would unreasonably increase their liability to accident. We are of the opinion that it was a question of fact to be determined by the jury whether or not the space mentioned was reasonably required by defendant as a part of its depot grounds or yard system. It certainly does not appear, as a matter of law, from the evidence, that the defendant was required to maintain fences and a cattle guard at that point.
In the case of Greeley v. St. Paul, M. & M. Ry. Co., 33 Minn. 136, 22 N. W. 179, it was held that the facts in that case did not tend to bring the ease within either of the implied exceptions to the statute; and those exceptions are declared in that case to exist when there is a legal duty imposed upon the company to the contrary, or when the public convenience is conserved, and a “public place” is defined as a place put into practical use by the public.
We are not disposed to insist upon the term “depot grounds” as
In some of the states the legislatures have taken note of the necessity of making the exceptions applicable to such places as switching yards, and have so enacted. In our own state, in the more recent decisions, this court has- recognized the necessity of extending the exceptions beyond the narrow limits understood by the term “depot grounds.”
“This implied exception has been held as to such places as depot and station grounds used for the convenience of passengers and the necessary handling of freight. This is as far as this court has gone, although there may be other and further exceptions, — such, for instance, as a yard used for switching purposes, ’crossed at surface by streets. Fencing without cattle guards on either side of the street crossings would be of no value, and at such places guards would prove death traps to switchmen, who in such yards have to do a large part of their work on the ground.”
In the case of Marengo v. Great Northern Ry. Co., 84 Minn. 397, 400, 87 N. W. 1117, this language is used:
“An exception would probably- also apply to yards devoted distinctively to switching, and the work of receiving, distributing, or making up and sending out trains, whenever the legal duty of maintaining cattle guards at highway crossings might seriously endanger the lives of switchmen in the use of the tracks.”
In both those cases, however, the facts were not sufficient to bring them within the exception.
Order reversed, and a new trial granted.
Dissenting Opinion
(dissenting).
I dissent. The evidence made the question of contributory negligence one for the jury. The boy did not, as said in the majority opinion, walk behind the cows “for his own convenience,” but, on the contrary, for the reason that he deemed it necessary to do so. He testified — and there is nothing in the record to contradict him —that one of the cows would not lead, and because of this fact, his team being gentle and easily guided by the voice, he walked behind to drive her. If the cow would not lead, .tied behind the wagon, it was clearly not necessary that the boy remain upon the seat of his wagon, and drag the animal across the track by the horns. It was for the jury to say whether he acted prudently or not. Indeed, if the evidence is conclusive either way upon this
(dissenting).
I concur in the dissenting opinion of Justice BROWN.