Hendrickson v. Great Northern Ry. Co. , 52 Minn. 340 ( 1893 )

Mitchell, J.

The only question on this appeal is whether the evidence was such as to require the jury to find that plaintiff’s intestate was guilty of contributory negligence in approaching the crossing where he was killed. We are unable to discover any controlling difference between the evidence now and that contained in the record on the former appeal, 49 Minn. 245, (51 N W. Rep. 1044.) The only important new fact which the evidence on the present appeal tended to establish was that, as a traveler on the highway approached the crossing from the west, there was, a short distance on, the top of the hill, some 375 feet from the crossing, where, by turning and looking west, he could see a train coming from that direction a distance of half a mile. It is argued from this that, if deceased had thus looked, he would have seen the approaching train. But this would depend on whether the train was within the half mile when deceased passed that point, and this, in turn, would depend on the speed of the train, and the speed at which deceased was driving his team. If, as the evidence tended to show, the train was going at the rate of thirty-five miles an hour, and the deceased walked his horses down the hill, the inference would rather be that the train was more than half a mile distant, and hence not within the decedent’s range of vision, when he passed the point referred to. While we concede that quite a strong argument might be made on the evidence that the deceased did not exercise all the care which he ought to have done in order to ascertain whether a train was approaching, yet we are of opinion that the question was one for the jury.

Judgment affirmed.

(Opinion published Si N. W. Rep. 189.)