
    THOMAS FLOODY v. GREAT NORTHERN RAILWAY COMPANY and Another.
    
    June 18, 1909.
    Nos. 16,168—(158).
    Complaint Good — Defective Switch.
    The complaint states a cause of action against appellant company for damages occasioned by constructing and maintaining a defective switch, notwithstanding it appears from the complaint that another railway company was negligent in operating the same.
    Action in the district court for Ramsey county against the Great Northern Railway Company and the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover $25,000 damages for personal injuries. The Great Northern Railway Company demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action against it. Erom an order, Hallam, J., overruling the demurrer, the demurring defendant appealed.
    Affirmed.
    
      M. L. Countryman, for appellant.
    
      Barton & Kay, for respondent.
    
      
       Reported in 121 N. W. 875.
    
   Lewis, J".

TJpon the former appeal (104 Minn. 474, 116 N. W. 943) the demurrer, upon the ground.that the complaint did not state facts sufficient to constitute a cause of action, was sustained, for the reason that it appeared from the facts stated that the derailment of the train was caused by the negligent handling of the switch by the Omaha Company, and not by reason of any fault of the Great Northern Company in the construction of the switch. In the complaint now before us the acts of the Great Northern Company with reference to the construction of the switch and the manner in which the accident was caused by reason of the defective switch are elaborated, and it fairly appears from the facts set forth that the accident was caused by the concurrent negligence of the Great Northern Company in constructing a defective switch with a rod so long that the dog would not automatically catch and hold the switch. The fact that the Omaha Company failed to take proper precautions to fasten the switch, knowing it was in the defective condition* described, does not necessarily release the Great Northern [Railway Company.

For these reasons, we agree with the trial court that the complaint states a cause of action, and the order appealed from is affirmed.

Jag card, J., dissents.  