Greenwood v. Chicago, Rock Island & Pacific Railway Co.

Action to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. A verdict was directed for defendant, and plaintiff appealed from an order denying her motion for a new trial.

The facts are as followsPlaintiff’s intestate, a young lady of about twenty-three years of age, was killed at the intersection of a highway and defendant’s railroad in the city of Faribault on March 21, 1903. At the crossing where the accident occurred the street is much traveled, and the railroad crosses the same at grade, and nearly right angles. Deceased approached the track on foot, and the evidence tends to show that when about twenty feet from the track she looked to the north and to the south, and then continued, and, just as she was about to step off the track, a train of cars backing down from the north struck and killed her. It appears that the train was composed of an engine and three cars, backing in the direction of this crossing at about the rate of fifteen miles an hour, and that when deceased was within twenty feet *285of the crossing it was thus rapidly approaching, and not far distant. There was no other railroad track at this point, and nothing to obstruct the deceased’s view for a considerable distance up the track in the direction from which the train was approaching; nor is there anything in the evidence which would justify a finding that her attention was distracted by any noise upon this or the Great Western Railroad, some four hundred feet distant. The evidence is ample to sustain the finding that the railway company was guilty of negligence in operating the train at the rate of fifteen miles an hour, in violation of the ordinances of the city of Faribault, and perhaps in failing to have a lookout on the rear car for the purpose of warning pedestrians on or likely to approach the track at street crossings, though it does appear without dispute that the whistle of the engine was sounded and the bell constantly rung as the train approached the crossing. But the trial court directed a verdict for defendant on the ground that deceased was guilty of negligence contributing to her death.

A careful examination of the evidence leads to the conclusion that the trial court was right; that the evidence is conclusive that deceased was guilty of contributory negligence. As already remarked,, her view of the track was entirely unobstructed for a distance of some nine hundred feet in the direction from which the train was coming. Though one witness testified that she looked in that direction as she approached the track, and before crossing it, it is clear that she was unmindful of her surroundings, and did not observe the train. She was a bright young lady, in the possession of all her faculties; and it is certain that, had she paid the slightest attention to the cars, which she must have seen, had she looked, the fact that they were rapidly approaching her would have been 'obvious. We cannot, under such circumstances, hold that plaintiff is entitled to recover, without, in effect, overruling all previous decisions of this court on the subject. The theory of plaintiff’s counsel is that deceased was evidently deceived; that she undoubtedly saw the approaching train, but supposed that it was going from her, and not approaching. It is difficult to .give force to this contention. The cars, according, to plaintiff’s testimony, were approaching at a rapid rate of speed; and it seems impossible, in view of the fact that there was nothing to obstruct the view, that deceased could have gained the impression that they were going *286from, instead of approaching, her. Similar cases have been before us, and we have uniformly sustained the trial court in holding the pedestrian guilty of contributory negligence. Russell v. Minneapolis St. Ry. Co., 83 Minn. 304, 86 N. W. 346; Baly v. St. Paul City Ry. Co., 90 Minn. 39, 95 N. W. 757; Schmidt v. Great Northern Ry. Co., 83 Minn. 105, 85 N. W. 935; Olson v. Northern Pac. Ry. Co., 84 Minn. 258, 87 N. W. 843; Schneider v. Northern Pac. Ry. Co., 81 Minn. 384, 84 N. W. 124; Sandberg v. St. Paul & D. R. Co., 80 Minn. 442, 83 N. W. 411.

Order affirmed.