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

Gilfillan, C. J. The evidence in the case was such as to make the question of defendant’s negligence one for the jury. The question of the evidence as to contributory negligence on the part of deceased is not so easily determined, but the majority of the court are of opinion that, upon the evidence, that question was also one for the jury. It is well settled that, ordinarily, one who attempts to cross or who places himself upon a railway track without looking and listening, when, by so doing, he may discover the danger from an approaching train, is guilty of negligence. The rule has been most frequently applied to the case of persons traveling on a highway at a railroad crossing. The majority of the court are of opinion, in which I do not concur, that this rule is not to be applied to the case of one who is employed in a railroad yard, and whose duties frequently make [10] it necessary for Mm to go upon the tracks, and the exigencies of' whose duties may call upon him to do so without premeditation or time or opportunity to ascertain if it is dangerous to do so; that the act of such a person in placing himself upon the track, in the discharge of his duty, without looking or listening, is not per se negligence, but may be negligence or not, according to other circumstances in the case, of which the jury are to judge. The majority of the court are also of opinion that from the evidence the jury might find a license by defendant, to the yard employes of the company for which deceased worked, to go upon its. (defendant’s) track in the yard, when necessary in the discharge of their duties; i. e. when necessary to signal an engine that cars were-coupled, and ready to be moved. Order affirmed. Buck, J., did not sit. (Opinion published 59 N. W. 633.)