Nelson v. Duluth, South Shore & Atlantic Railway Co.

Winslow, J. There was ample evidence to justify the finding of the jury that the train was negligently operated at the time of the accident. The vital question in the case is whether the finding that plaintiff was not guilty of contributory negligence is justified by the evidence. The plaintiff was a man twenty-two years of age, a teamster by trade, and had lived at Iron River a year and a half. He knew the surroundings perfectly, and knew that this construction train was running at all times. According to his own testimony, he started from behind the store after having looked to the westward and listened for» a train from the east. He does not claim even to have looked to the east after he got out from behind the corner of the store, until his horses’ heads were four or five feet from the rail of the. track. He was standing up in the wagon, about twelve or thirteen feet back of the horses’ heads. Thus, it is clear that when he first looked to the east he had passed the corner of the store somewhere from twelve to fourteen feet. Unless there was some obstruction in the way which would prevent his looking up the track after.he passed the corner of the store, he was certainly negligent, as matter of law, in not looking. The case is not as if he had been advancing steadily.along the street and his yiew had only been momentarily cut off by the building. In such case, if he had looked up the track be [396] fore passing in front of the building, and seen no train, it might well be that the question whether he could be excused from looking the instant he passed the building would be one for the jury. In the present case he had stopped a minute or more in front of the building, where his view of the track to the east was entirely cut off. This effectually destroyed the value of any previous look eastward, and imposed on him a greater obligation to use his eyes at the first practicable opportunity. There is some evidence that there were some piles of stumps in the right of way along the north side of the store, which would partially impede the view of a man standing on the ground. This evidence is quite vague and unsatisfactory, and the plaintiff’s leading witness on the point testifies that from the center of Main street, opposite the northwest corner of the store, you could see 125 feet down the track. This witness also says that if a man were standing in a wagon he could see a great deal better. However the evidence may be as to the view of a man on the ground, there is no witness, not even the plaintiff himself, who testifies that the view of a man standing in a wagon would be materially obstructed by the stumps or by the small cut which existed east of Main street-. To justify a man in driving out from behind a building thirty feet distant from a railroad track towards the track, where he knows trains may be expected at any time, without attempting to use his eyes, there certainly must be some substantial evidence that such attempt would be futile. The evidence seems to us to show clearly a case of contributory negligence on the part of the plaintiff. By the Court— Judgment reversed, and action remanded for a new trial.