76 Minn. 506 | Minn. | 1899
The plaintiff on December 4, 1897, was injured while in the act of crossing the defendant’s railway track at a farm crossing. The
The defendant here claims that the judgment should be reversed for three reasons: (1) That no negligence on the part of the defendant was shown; (2) that neither the plaintiff, nor the landowner in whose service he was at the time he was injured, had any right to use the crossing; (3) that the plaintiff was injured solely by reason of his own negligence. The second question was one for the jury. The third is doubtful, but we do not find it necessary to decide it, for we are of the opinion that the first must be resolved in favor of the defendant.
The evidence fails to show any actionable negligence on the part of the defendant. It is an admitted fact in the case that the defendant in the year 1886 acquired the right of way across a tract of 120 acres, which includes the place of the accident, and that the then owner thereof and the defendant agreed that two farm crossings should be built and maintained by the defendant on the tract. As to what kind of crossings were agreed upon at the time, and the character of their maintenance, — whether they were to be simply statutory farm crossings for stock (see G. .S. 1891, § 2696), or crossings for the general use of the owners of the land in their farming operations, and whether they were to be maintained during the winter season, — the record is silent, except as indicated by the acts of the parties. The crossings were built, and at one of them the plaintiff was injured.
The complaint alleges the manner in which the crossing in question was constructed and maintained, substantially as follows: It was a private railway crossing over the defendant’s railway tracks
“Except that during said period, in winter seasons, said defendant customarily removed said planks from said crossing, which were situated between the rails thereof, replacing them in the springtime.”
These allegations of the complaint were undisputed on the trial,, and the evidence conclusively sustains them, and further shows, that, as a matter of safety in the operation of the railway, the planks between the rails were not kept in place during the winter season. There was no evidence of any objection on the part of the landowners to this being done. The specific charge of negligence on the part of the defendant alleged in the complaint is that prior' to November 29, 1897, the defendant never removed the planks-without first obtaining the consent of the owners of the farm so-to do, and without first notifying them of its intention so to do, or-without notifying them of such removal after removing the planks,, and that without such consent, and without giving any notice to such owners of its intention so to do, the defendant on the day named removed the planks which were between the rails, and did not give notice of such removal.
There was no evidence given on the trial tending to show that it was the custom of the defendant to obtain the consent of the landowners before removing the planks, or of notifying them before or after the removal. There being no proof of a custom to secure the consent of the owners or to notify them, the specific negligence alleged was not proven. The evidence, however, was sufficient to sustain a finding that no notice was given of the removal of the planks here in question, or of an intention to do so. It follows that, if there is any evidence in this case tending to show any negligence by the defendant, it must be its act of removing the planks between the rails at this private crossing on November 29, 1897,—
It is to be noted that the crossing in question is not a public one, ■as to which the law prescribes the duty of the railway company (Lillstrom v. Northern Pac. R. Co., 53 Minn. 464, 55 N. W. 624), but a private crossing, created and maintained pursuant to the contract of the parties. While the record is silent as to the matters we have suggested, still the manner of the execution of the contract as to the building and maintenance of the crossing was acquiesced in by both parties for 11 years after it was entered into. This necessarily involves a practical construction of the contract by the parties to it, which the court ought to adopt and enforce, — ^ ■especially so in view .of the fact that the contract, as defined by the acts of the parties, is entirely consistent with its expressed terms. First Nat. Bank v. Jagger, 41 Minn. 308, 43 N. W. 70; O’Dea v. City of Winona, 41 Minn. 424, 43 N. W. 97; McDonough v. Hennepin Co. C. B. & L. Assn., 62 Minn. 122, 64 N. W. 106.
The plaintiff, however, claims that the custom of the defendant to remove the planks for the winter season without notice, of which neither the plaintiff nor his employer (who had occupied a part of -the tract for some eight months prior to the accident) had any knowledge, was a negligent one, and that it cannot have any effect on the contract requiring the defendant to maintain the crossing. If the express terms of the contract had been that the farm crossing should be maintained continuously, with planks between the "tracks, including the winter season, when the ordinary field operations are suspended, the claim would not be without virility. But ■such is not this case, where the admitted and acquiesced conduct of the parties in the execution of the contract is the proof of its
Judgment reversed and case remanded, with direction to the district court to grant the defendant’s motion for judgment notwithstanding the verdict.