MacLeod v. Payne

Per Curiam. A collision between plaintiffs’ automobile truck and a train, of cars belonging to defendant at a grade crossing resulted disastrously to the truck, and plaintiffs brought this action for damages on -the ground and claim that the accident was caused by the negligence of defendant. A verdict was returned for defendant, and plaintiffs appealed from an order denying a new trial. The principal contention in support of the appeal is that the trial court erred in refusing certain of plaintiffs’ requested instructions to the jury. We find no error in this respect. The action is in negligence and controlled by the rules and principles applicable to that branch of the law, thoroughly and well understood by the trial judge. The charge to the jury was quite long, yet clear, and fully stated all the rules applicable to the issues presented. The court pursued the course commended in Davidson v. St. Paul, M. & M. Ry. Co. 34 Minn. 51, 24 N. W. 324, refusing all special requests, except as included in the general charge. In this manner all the requests of plaintiffs were covered in what the court gave to the jury as the law of the case. We find nothing of substance omitted, and there was no error in not giving them separately. Woxland v. N. W. Consolidated Milling Co. 113 Minn. 440, 129 N. W. 856; 3 Dunnell, Minn. Dig. § 9778. Nor do we find error in any other respect. There is no express provision of the law requiring the maintenance of a flagman, gates or a gong at the particular crossing, and none were placed there by defendant. But the court submitted to the jury the question whether their absence, though not required by positive law, constituted negligence on the part of defendant. In this connection the court stated the absence of express law on the subject, and counsel contend that the effect thereof was prejudicial to plaintiffs as a disparaging comment of the court. We are unable to take that view of the 495 matter. Peterson v. Chicago, B. & Q. R. Co. 131 Minn. 266, 154 N. W. 1093. There was no error in the admission of evidence, showing the character of the crossing and the extent of the traffic thereon. And finding no error the order appealed from will he and is affirmed.