Westaway v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co.

Vanderburgh, J. At the time of the accident complained of there wras, and had been for several years, a private crossing over the railway tracks of the defendant and adjacent tracks of other companies near a public street crossing at the place designated in the complaint. This crossing was continually used by plaintiffs’ employes and teams, in the course of their business, with the permission of the defendant. On the particular occasion referred to in the pleadings, while plaintiffs’ team, in charge of an employe, was crossing the tracks, one of defendant’s engines was, as it is alleged, negligently backed down upon the crossing, without the bell being rung, and there struck one of the horses, and caused the injury complained of. The crossing was evidently a dangerous one, and much used. It is also clear enough from the evidence that the defendant had previously recognized this crossing, and adopted the usual signals therefor; and the bell was usually rung on the approach of engines, as at regular street crossings. It could not, therefore, discontinue such signals without notice, and a negligent omission to give them, resulting in an accident, would subject the defendant to the same liability as at other crossings. Otherwise parties who had beep in the habit of crossing in reliance upon such signals would be exposed to danger without warning. Erickson v. St. Paid & Duluth R. Co., 41 Minn. 500, (43 N. W. 332.) The defendant’s recognition of the crossing and acquiescence in its use were sufficient warrant and license for its continued use as .a crossing for teams until notice of a revocation. For reasons already apparent, it was proper to ask the question whether it was the practice of the company to ring the bell for this crossing. As respects the defendant’s alleged negligence in driving the [32] engine with reckless speed over the crossing, we find but little foundation for this charge in the evidence. While one of the witnesses, who saw the engine in motion from his office, judged that it was running at the rate of six miles an hour, all the other witnesses who testified on the subject placed its speed at four miles an hour or under, and the uncontradicted evidence is that the engineer stopped it within the distance of half the length of the tender, or six or eight feet, after he applied the brakes to prevent the collision. It is very doubtful if that issue should have been submitted to the jury. But upon the question whether the bell was rung at this crossing, the evidence was such as to warrant the submission of the case to the jury. And upon the question of the contributory negligence of the plaintiffs’ servant we think the court erred in refusing to give in its charge to the jury the thirteenth request of the defendant, which was refused. The evidence in defendant’s behalf tended to prove that plaintiffs’ servant in charge of the team on the occasion referred to drove on the Northern Pacific Company’s tracks just ahead of an approaching train, which he barely escaped, and “hurried up” to avoid that train, heedless of the warning given him, and immediately passed on to the ¡defendant’s track, where he was exposed to its engine; and also that his attention was so engrossed by the situation on the former track that he did not think of danger, or look out for the engine on the track of defendant. And one of the witnesses testifies that the distance was so short between the two tracks that before he could stop the-team he would run .onto the defendant’s track. Upon this state of the evidence it was proper to submit to the jury this special request upon the subject of the plaintiff’s contributory negligence in the premises, and the court erred in rejecting it. We do not think it was fairly or clearly covered in the general charge. There is one portion of the charge also so clearly erroneous that it must have been an oversight, but, as the mistake will not be likely to be repeated at another trial, it is hardly necessary to refer to it here. Order reversed. • (Opinion published 57 N. W. Rep. 322.)