
    STEPHEN MATTES v. GREAT NORTHERN RAILWAY COMPANY.
    
    January 4, 1907.
    Nos. 15,027—(165).
    Former Decision Followed.
    Former decision in this case, 95 Minn. 386, to the effect that defendant’s shopyards came within the scope of the statute requiring railroad companies to fence their roads, and that whether the yards in question could be fenced, including the construction of necessary cattle guards; without materially impairing their usefulness, was. a question of fact for the jury to determine, followed and applied.
    Railroad Fences — Cattle Guards.
    . . The rule laid down in Rosse v. St. Paul & Duluth Ry. Co., 68 Minn. 216; to the effect that the railroad fence statute was designed to prevent children, as well as animals, from entering upon railroad tracks, held to apply to cattle guards constructed as a part of the fence.
    Evidence.
    Evidence held to sustain the verdict.
    Action in the district court for Stearns county by plaintiff, as administrator of the estate of Alois S. Mattes, deceased, to recover $5,000 for the death of decedent. The case was tried before Searle, J., and a jury, which rendered a verdict in-favor of plaintiff for $1,000. From a judgment entered pursuant to the verdict, defendant appealed.
    Affirmed.
    
      M. 4. Countryman and Geo. H. Reynolds, for appellant.
    
      Bruener & Klasen and /. D. Sullivan, for respondent.
    
      
       Reported in 110 N. W. 98.
    
   BROWN, J.

This cause was here on a former appeal. 95 Minn. 386, 104 N. W. 234. On the first trial, the court directed a'verdict 'for defendant, at the close of plaintiff’s evidence, and the latter appealed from an order denying his motion for a new trial.- We held on that appeal that the evidence presented a case for the jury on the several issues raised by the pleadings, and remanded the cause for a new trial. The second trial,resulted'in a yerfiiptjf or.plaintiff,for ^1,-0.0.0; and defendant,appeals, from an order,-depyjing its ¡pio.tjon-for .judgment,notwithstanding,.the, verdict...-'Reference ;fp theforraer opinion-is here m^-fie, fpp an.,ppfie;r-standing of the facts... -It ig. unnecessary to restate, them, in this opinion.

■We follpw,.the former, decision to the effect, thaf the .statutes; iipposipg upon railroad, companies the obligation to fence their roads; apply ta the. repair shops and yardp in question;- and,hold, upon the.eyifieppe-. on this, appeal, ¡that: tfie„ questiqn-whpthei;, it,ryiasi practicable_to)(fenee them,, without, ¡materially, impairing fhe usefulness, of, fh^f.yaffis, ¡-w;asfor the jury,to detefmipe., The court did npt,, as: w,e,.reafi.tfiejphgj;ge:,. say to th.e jury that it was incumbent upon defendant for fence, the entire tract of land, upon which the yards were lpcatefi, but instead, that, such a fence wopld have been a compliaqce with. the.statute, and this.at defendant’s request, leaving them to say whether a. fence encircling1 the yards was practicable.1, Byfheir verdict for .plaintiff, the conclusion that it was practicable,must,be,,taken.a? finally,settled;,anfi fhis .applies ,no,t only to the fence proper, but to? the cattle; guard? necessary, tp be copr structed at the highway .extending.across the lead ,track to the ,west;of the various side tracks. The neglecf of,defendant tp .comply with-the statutes on this subject pyas .evidence of , negligence, sufficient tp-take the case to the jury, anfi, unless ppe or bp.th of the contentions — ¡-(fi) that the absence of the fence anfi,cattle guards. -iyps pot the pro^imafe ,ca;use of the death of plaintiff’s¡intestate,- an.fi (2),. that plaintiff was,,guilfy p,f contributory negligence — be resolved, in .defppdant’s favor, .the ^verdict must be sustained. . - ■■ ...... • , .

It is insisted in this connection, with much earnestness, that cattle-guards at the highway intersecting the leafi track; at the. west end ,of the yards, had they been constructed,. wo,uffi not,, in .any pther than an-imaginary view, have prevented the,boys from-going upon the. rpilrpad tracks; that defendant’s failure ,to.construct them ,w.as not, therefore, the proximate cause of the accident, and we.are urged....to.so hold as,a matter of law. We are unable to distinguish, from the standpoint of effectiveness as a barrier to young children, between-cattle,guards, and an ordinary right of way fence. Neither wfil absolutely obstruct-or prevent entrance upon the railroad grounds.¡¡, Their..,,chappcter,'.an.fi structure, so far as effectiveness is concerned,.,yyjlf not,.warrant thq court in saying, as a matter of law, that either, wpuld or wopld. pqt ;anj swer the purpose .intended by the statute. Children may pass over or under the cattle guards without difficulty, and with equal facility climb over or crawl under the fence, but either might have the effect of turning them away. The case in this particular is controlled by Rosse v. St. Paul & Duluth Ry. Co., 68 Minn. 216, 71 N. W. 20, 37 L. R. A. 591, 64 Am. St. 472. We also follow the case of Ellington v. Great Northern Ry. Co., 96 Minn. 176, 104 N. W. 827, to the effect that the question whether, had defendant performed its duty in this respect, the children of plaintiff would have been prevented from going upon the yard grounds, was a question of fact for the jury to determine. If the yards had been fenced with proper cattle guards at the highway intersection, they would have been completely inclosed, and it is unnecessary to consider whether the boys entered at the place where the cattle guards should have been constructed, or at some other place. '

It is further contended that plaintiff, father of the boys, was guilty of contributory negligence in sending his children upon the railroad land for the purpose of herding cattle, knowing of the proximity of the railroad tracks and repair shops. The evidence on the question is substantially like that presented on the former appeal, and we follow the decision there made. The land upon which the shops are located consists of a tract of about one hundred twenty five acres, unfenced, to wdiich the people in the vicinity had resorted for a number of years for various purposes — picnics, baseball, herding cattle, etc., and this without objection from the railroad company. Plaintiff’s boys were herding.cattle upon the land with his knowledge — perhaps he had sent them there for that purpose — not upon the shopyards, however, but upon the unoccupied land in the vicinity. It occurs to us that it would be going far beyond reason to say that plaintiff was guilty of contributory negligence, either in permitting or sending the boys, under the circumstances disclosed, to herd cattle upon this tract of land, even though he knew of the fact that the yards and shops were unfenced.

The case is clearly distinguishable from Ellington v. Great Northern Ry. Co., supra. In that case, it appeared that the parents sent their child across the tracks and right of way on an errand, and he was killed while complying with their directions. There is a marked difference between sending young children upon or across railroad tracks, upon which trains are frequently operated, and sending them to herd cattle upon vacant and unoccupied land adjacent to such tracks. Nor does the ownership of the land adjoining the yards affect the' question in the case before us, for the fact remains that defendant did not send his boys upon the yards, and the record contains 'no suggestion that he knew that they were in the habit of frequenting the same, if such were the fact.

Again, there is no evidence in the case to sustain the contention that at the time the boys were killed they were engaged in the work of herding cattle at or near the shópyards. They started from home at the noon hour with their herd, down the highway to the river, a‘considerable distance from the yard tracks, and were not thereafter seen with the cattle by any one. At about five o’clock in the afternoon they were found dead, alongside one of the tracks, by a railroad employee, and at that time no cattle were about or in the vicinity. In connection with this situation, counsel for defendant requested the court to instruct the jury, and it did so, that “there being no evidence as to where any of the cattle were at the time the boys went on defendant’s premises,” the jury could not find that “they went there to herd or look after the cattle.” If the evidence so conclusively established that fact, the instructions of the court, given at defendant’s request, wholly eliminated the question of plaintiff’s contributory negligence in sending the boys upon the railroad land. They were not upon the yards herding cattle, nor in the discharge of any duty owing to, nor in compliance with any directions of, plaintiff at the time of their death, as was the fact in the Ellington case.

Neither is the evidence conclusive that plaintiff had surrendered his guardianship and control of the younger boy by permitting or sending him with his older brother on this occasion, and is consequently precluded from recovery because of the negligence of the latter in taking him upon the railroad grounds. This question was disposed of on the former appeal, and we adhere to the decision' there made.

Upon all these questions, the evidence fairly made a case for the jury, and their verdict is sustained; at least, the evidence’.is not so far conclusive in favor of any of defendant’s contentions as to justify this court in granting final judgment on the merits of the case in its favor.

For these reasons, the order denying the motion for judgment is affirmed.  