Howard v. St. Paul, Minneapolis & Manitoba Railway Co.

Gilfillan, C. J. There is no inconsistency between the general verdict and the special findings of fact. When the manner of running the ears across the street by “kicking,” and the situation of the tracks, had been explained to the jury, and the rate of speed at which they were run across shown, together with the character of the night as to darkness, and of the street as to the extent to which it was travelled, it was peculiarly the province of the jury to determine whether the rate of speed was reasonable, and whether “kicking” the ears— that is, giving them an impetus sufficient to carry them to the desired point — is a more dangerous mode of running them across a street than running them across with the engine, and whether it is any more convenient. No one can be so ignorant of the operating of railroads as not to know that the engines can run ears at a snail’s pace, while “kicking” must require considerable speed to be given at the start to carry the cars to the point of destination. It was proper to submit the questions to the jury, though there was no expert testimony, for [216] the matters came within the common sense and common observation of the jury. The question of plaintiff’s contributory negligence was clearly for the jury. Of course, in approaching a railroad crossing to cross it, a man must make use of his sight and hearing to ascertain if it is safe to cross. But if, upon diligently using them, he does not learn of approaching danger, it cannot be negligence to make the crossing. Plaintiff swears that he both looked and listened, and neither saw nor heard the approaching ears till too late to escape. His companion, Otto Kirst, swears that he too looked and listened, and did not see nor hear the cars. And that their testimony was not entirely improbable was apparent from the testimony of the policemen Daly and Brady. If the jury were satisfied — and from the evidence they might have been — that the plaintiff looked and listened when he was about 14 feet from the track, and saw and heard nothing, it was for them to determine whether, under the circumstances, it was negligent in him to assume that he could walk that distance without danger. Order affirmed.