
    Edward Dupee vs. Northern Pac. R. Co. Cade Jaaska vs. Same. Burt Harrington vs. Same.
    Argued June 29, 1892.
    Decided July 22, 1892.
    Hew Trial.
    Rule in Hieles v. Stone, 13 Minn. 434, (Gil. 398,) as to granting a new trial, followed.
    Appeal by plaintiffs, Edward Dupee, Cale Jaaska, and Burt Harrington, from an order of the District Court of Otter Tail County, Seasie, J., made February 27, 1892, setting aside verdicts in favor of each of said plaintiffs, and granting new trials.
    The plaintiffs, Dupee, Jaaska, and Harrington, and one William Harrington were in a wagon driven by Peter Beanstrom in the Village of New York Mills, and approached the point where the defendant’s railroad crosses Main street, from the south. Three tracks cross Main street at this point, the main track and a switch on either side. As the wagon containing plaintiffs was being driven over the crossing it was struck by the engine of one of defendant’s regular passenger trains coming from the west, and the occupants of the wagon thrown out and more or less injured. Dupee, Jaaska, and Burt Harrington each brought an action to recover damages for the injuries received by them. The actions were tried together in the District Court. The plaintiffs claimed that the defendant was negligent in running its train over the crossing at a high rate of speed, and without warning of its approach. The defendant claimed that it was not negligent, and that plaintiffs were guilty of contributory negligence. The evidence was conflicting as to the speed of the train, and as to whether the bell was rung or whistle sounded, and as to whether plaintiffs could have seen or heard the train in time to avoid the collision had they been looking and listening. The jury found verdicts in favor of each of the plaintiffs. The defendant moved for a new trial of the actions on the ground that the verdicts were not justified by the evidence and were contrary to law. The motion was granted, and the plaintiffs appeal.
    (Opinion published 53 N. W. Rep. 957.)
    
      Smith & Lewis, for appellants.
    
      Tilden R. Selmes, for respondent.
   Dickinson, J.

These three actions were tried together, and verdicts returned in favor of each of the plaintiffs. The court granted new trials for the insufficiency of the evidence to sustain the recoveries, and the plaintiffs appealed.

The asserted rights of action are for the same alleged negligence upon which was founded the case of Beanstrom v. Northern Pac. R. Co., 46 Minn. 193, (48 N. W. Rep. 778;) these plaintiffs being in the same wagon with Beanstrom when it was struck by the train at the crossing. The evidence presented in the trial of these cases was not so clearly in favor of the plaintiffs that the action of the trial court in directing a new trial should be reversed. The rule in such cases has been often stated, and is familiar.

Order affirmed.  