No. 20,507 | Minn. | Oct 12, 1917
A demurrer to the complaint was sustained and. plaintiff appeals. The pleading alleged, in substance, that plaintiff operated an electric railway between St. Paul and Hastings, Minnesota; that one of its cars from Hastings was due at a station on its line known as Brown’s Crossing at 7:39 a. m; that this ear left Hastings on the morning of September 23, and when it was approaching Brown’s Crossing defendant wilfully, negligently and wantonly there drove upon the right of way and track of plaintiff a heavy traction engine to which was attached a grain separator; that at the time defendant drove said engine upon the track of plaintiff there was a dense fog and he well knew that the ear operated by plaintiff was due to pass at Brown’s Crossing, but he nevertheless failed and neglected to use any means to notify the operators of plaintiff’s car that the traction engine was then on the track upon which said car of plaintiff was running; and that, by reason of said negligence of defendant, plaintiff’s ear collided with the traction engine whereby the ear was broken and damaged in a stated amount.
It does not appear from the complaint that the collision took place upon a public highway, unless it is to be inferred from the name of the station. But, since the court below and the attorneys for both parties assume the accident to have happened at a place where a public highway intersects plaintiff’s right of way, we indulge the same assumption. In the nature of things, the trains or cars operated by railroads along their own right of way are not expected to give precedence to persons or vehicles at intersections of public highways. The necessity of rapid and safe public transportation forbids the slowing down of trains at every highway intersection so as to give the traveler on the highway, who perchance is nearer the intersection, the right to cross first. Statutory enactments impliedly recognize that it is the duty of travelers on public highways to refrain from attempting to pass over a railroad grade crossing when there is danger of collision with an approaching train. The railroads are required by signs and signals to notify travelers on the highways of the existence of a railroad crossing and of the approach of their trains. This evidently with the purpose that no one shall attempt to cross when a train or car is so near that a collision might ensue. Travelers on public highways approaching a railroad crossing must give
The contention is not tenable that the complaint affirmatively discloses contributory negligence of plaintiff. The dense fog accounts for the failure to observe defendant’s approach and use of the crossing. No inference may be indulged in that the statutory warnings and signals were not given or that there was excessive speed or any other negligence in the management of the car. The presumption is that those in charge of plaintiff’s ear used ordinary care in its operation.
The case of Belshan v. Illinois Cent. R. Co. 117 Minn. 110, 134 N. W. 507, does not appear to sustain defendant’s position. There a traction engine and threshing outfit stalled upon a highway crossing on account of the railroad company’s neglect to keep the crossing in proper repair. The owners of the threshing outfit spent some little time in an effort to get loose before they endeavored to signal an approaching train which they knew was due, but was not in sight, when the crossing was attempted. It was held that it was properly left to the jury to determine whether the
In our opinion it was error to sustain the demurrer herein.
Order reversed.