
    ADOLPH LANDO v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.
    
    October 30, 1900.
    Nos. 12,188—(9).
    Death by Wrongful Act — Wilful Negligence.
    The trial court is not required to submit the question of defendant’s wilful negligence to a jury, when, ,in a suit for personal injuries, the evidence goes no further than to indicate want of ordinary care on the part of defendant’s servants. Under such circumstances, it would be error to do so.
    Same — Evidence.
    Evidence in this case considered, and held that plaintiff’s intestate contributed to his injury by his own want of ordinary care, and that there was no evidence of an intention to injure him, or wilfully disregard his rights in the premises.
    Dismissal of ■ Case.
    The trial court did not abuse its discretion in refusing to dismiss this case, on plaintiff’s request, at the close of his case, and the verdict for defendant was properly directed.
    Action in the district court for Ramsey county by plaintiff as administrator of the estate of Andrew Fisher, deceased, to recover $5,000 damages on account of decedent’s death. The case was tried before Kelly, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.
    Affirmed.
    
      8. O. Olmstead, for appellant.
    
      Pierce Butter and ThomasWilson, for respondent.
    
      
       Reported in 83 N. W. 1089.
    
   LOVELY, J.

. In this action, plaintiff seeks to- recover for the death of. his intes-Ifishei,,occasioned -by injuries sustained .at- the.St. Paul yard of defendant through the alleged negligence of-its servants in the operation of a switch engine. At the conclusion., of the evidence, counsel for plaintiff, .requested permission to dismiss the action, which was refused by the trial court. Upon motion of defendant’s .counsel,, the court then directed a verdict in defendant’s favor. These two orders, are properlyjhere for review upon the whole evidence, and present the only questions for our serious consideration. • -

The defendant’s yard, where,: the accident occurred, is located under and adjacent to the Third street bluff of the city of St. Paul, at the eastern portion of -which -íí thé -sbuth'ánd" rear: side-of: the Wést 'Püblishüi'g ;Hou'sé.' The tracks in defendant’s - yard, with numerous'switches,, extend along the foot of the bluff ''west of .the publishing house.some four, hundred feet;, at a point .midway, between the east and west ends of the.yard there was a. plank, crossing extending sixteen feet in width transversely across the. tracks, which crossing, for the purposes.,of this, case, may be treated as a ppblic.way,.,. With the. exception of this, crossing, the tracks in-the yard-wereused exclusively for railroad purposes; and at the time of the injury to Fisher he had no license from defendant to-be thereon, or occupy the same for any purpose. >■

. Intestate was .-familiar- with the- location- of the- tracks, and had been in the habit of-driving over them on-his private business, to a point near the West building once each'week for some'time previous to his death. On the occasion in question he drove a single horse and. wagon into the yard, and stopped o.n one of the tracks opposite the. West building, where he was engaged for some time in'loading sacks with waste paper to be hauled away- At this'time one. of defendant’s switch engines, with,'an engineer and fireman,"was on the same track, a short distance east of the" wágbn. ' The "engine was headed to the east, and coupled to a stock c.ar in front, which was to be pulled to. the. western end ".of the yard. To reach that üésímátiohj tbfe €'ñginfeiaaia-.cáE b.ad¡to pass over: the.;p]?ice'/wh$re Fisheí’s tragón'thén waá pahd .decéásedrwas; requested-.toLmoy;e! froiq theWáek;Tso-tbbf ■thé'ehginex'mightpass.íOveiptbe, sanie, which be did áltér he had-finished -loading.. r>' Efe-then moved, jwesjlagt-.an, -or di? tíá^y '.pdSe ovéB'tbé’traófa’itb'ñoüigk’tbe yürde'driVingiM? skPE§€hPJjA Wáliiüg oln"-ffie''SOulfh-'side:of.Ms •‘wagoned Sotíji fóliówed '-tiy* the'Swit&h .¿ngihe;. backing* tender- ahead.-mits pgH Va9 ringing:-á-nditwás -moving at-.a-Spfeed'ofenot more, than four, jmijp^ an bonr until tbe plank crossing was reached. Deceased rat ;this timé bad Teaohed the-cr-ossing, and turned towards-..the south?, probably intending-'to-jpKSS over-the same.mndroutt .of thenyard > on. a tiaveled-way,' which Was--the. only means ofy exit, Ltherefrqm;; but, when-the -horse'got to the'track on.-whicb tbeebgineiwas ■approaching, it shied suddenly a-tídoturñedióctheírighteagujnigoingTuppimthe tracks,:'ih>-théT'yárd/t(3 gípointí.about.ten feset-west.pf jthg erpssifltg, where deceased was-:oive-rtaken hyr the-engine;,ah4;prjj^hed'ibet^egp tbé'ténder' ahd." hist wagon,steceiving-isíuchí inter-nakinjurips thatifre d-íede- • -• -,. /■ ivo,, ,<;■ ;,r ,-p

i-- It cannot"be-■ doubted-that'Fisher .must have.known of the;proximity of the engine before, as well as at tbe.time/tlie collision occur,; reá, audit is- quite doubt-fnl-if he could have -passed do ;the:south,; in front of the same,:-to::fhe¡traveled way.- ■ -.Y,et .itis- conceded.that,,he might1-hate‘stopped-until the-engine had. parsed,? or .-by the. slightest effort turnedfoNhe -right.-.andavoided.theigplJSsion,T.,

' It was"--insisted -that..while ;plaiútiff?Sí>intestateumay<jhave--b^en negligentin'using,the-(defendant’s--tracks-,gnd..-y,ard,;,and. in being too-hear t-he 'placei..overcv'hich---thevengine,imiiS.t_.pasS)(lyet .the^facj: that flie'engine had. previously.- stopped if o-rhi-m ¡to .ffniphilpading; wagon -gave' him .somé'.right? iQf-bplipye-thqt thp.persons in., charge of¡t-h'é same would continue ;to? exercise-mope .than .usual! care :.to avoid'-injuring‘him. . .This .position 'is. not tenable. -fjNhilp- the> deceased- waS-upon the. tracks in--the yard-, except, at (the crossing,,,he was a mere trespasser -in .a-,.plaee where .defendant’s, -rights; .were exclusive; ahd he-cauldmot; demand-more ,-frojn d-tsr^eryants-,-tha.n that they, should not, after, the..discovery, of,,hjs.peril,-.bp^wgntqnly nr wilfully negligent Donaldson v. Milwaukee & St. P. Ry. Co., 21 Minn 293; Smith v. Mineapolis & St. L. Ry. Co., 26 Minn. 419, 4 N. W. 782. The fact that the engine had waited for intestate to load his wagon shortly before did not give him the right to encounter unnecessary danger thereafter, nor enforce upon the persons in charge of the engine an expectation that he would do so, nor require them to be unusually careful through fear that he might. They had the right to suppose that he would exercise ordinary prudence himself, and to act upon such presumption, in the absence of knowledge that he was in actual danger. Johnson v. Truesdale, 46 Minn. 345, 48 N. W. 1136.

If it be conceded that after the deceased went upon the crossing he had a right to pass over the same and out of the yard by the traveled way, such right was not absolute, but subject to the use of the tracks by defendant’s engine. Clearly, such right was no greater than that of travelers at railroad grade crossings; and if deceased, when upon the crossing, negligently passed in front of the engine, or approached too near the tracks, he did so at his peril, and defendant cannot be held responsible for any injury occasioned by his negligence in that respect. Westaway v. Chicago, St. P., M. & O. Ry. Co., 56 Minn. 28, 57 N. W. 222. Judson v. Great Northern Ry. Co., 63 Minn. 248, 65 N. W. 447.

It is urged here that there was evidence to establish such a disregard of human life by defendant’s servants in charge of the engine as to require a submission of that question to the jury. It is not sufficient to require such submission, that there is evidence from which a jury might infer that defendant’s servants were negligent and failed to use ordinary care in the premises, but there should be some evidence from which an inference can be drawn of an act or omission indicating a wilful disregard of life, or an actual intention to injure the deceased. The actual relation of the engine to the intestate immediately preceding the collision is detailed by the fireman, Busse, who is the only witness who gives an account of what occurred at the critical moment. He states that the tender backed upon the crossing very near the wagon; that deceased was at that time in a position of safety, but that he turned his horse towards the south, as if to go over the crossing, and, as soon as he reached a point in dangerous proximity to the engine, he (the fireman) quickly gave two distinct signals to the engineer to stop the engine (the engineer being on the other side of the cab, at the levers, the signals had to be transmitted from the fireman to him); and that the engineer immediately reversed his engine, and did all that was necessary to stop the same, but the engine did not stop until at the instant of the collision. Neither the fireman nor the engineer can with the slightest reason, upon this showing, be held responsible for any intentional or wilful misconduct in not stopping the engine sooner.

The distinction between want of ordinary care which applies to injuries from negligence, where the relations of the parties are mutual, and the obligations to exercise care to avoid injury to a person in peril, when the recovery depends upon proof of wilful neglect of the person upon whom care is imposed, is quite clear, and has been pointed out in former decisions of this court. Fonda v. St. Paul City Ry. Co., 71 Minn. 488, 74 N. W. 166; Sloniker v. Great Northern Ry. Co., 76 Minn. 306, 79 N. W. 168. This is a distinction that a trial court must recognize, and it should not submit a case to a jury in which the recovery depends upon proof of wilful neglect or reckless disregard of human life, where the evidence goes no further than to support the charge of want of ordinary care by the person upon whom such duty is imposed. In other words, evidence which shows negligence usually will not justify a submission of a cause when proof is required of a wilful intent to injure.

A.t the close of the evidence plaintiff’s counsel was disappointed by unexpected answers of an expert witness, who could not state the number of feet within which an engine, under the circumstances above stated, could be stopped at the critical moment. In reply to the request of plaintiff’s counsel for leave to dismiss the action, the trial court asked, in substance, whether, if the case was dismissed, and there should be another trial, the plaintiff would be able to produce additional testimony, to which inquiry counsel responded that he would not be able to furnish further testimony of the accident, but expected to be able to furnish testimony which would indicate that the engine could have been stopped before the deceased was struck. The .trial court thereupon refused to allow a dismissal, and directed a general verdict for the defendant.

Ordinarily courts are very liberal in granting the favor asked for in this case, when counsel are mistaken or surprised in the production of testimony to tbeir disadvantage, and we think wisely so; but it is impossible, after a careful reading of the evidence in this case, to avoid the conclusion that a new trial would not benefit the plaintiff, or enable him to produce evidence which would have convicted defendant’s engineer or fireman of a wilful intention to injure plaintiff’s intestate. This alone would subserve his purpose on another trial of the case, or require its submission to the jury. The right, under the statute, to have a case dismissed after the trial had been commenced, rests in the sound discretion of the trial court. Althen v. Tarbox, 48 Minn. 1, 50 N. W. 828. And it does not appear to us that such discretion was abused in this respect.

The disposition we have made of this case renders it unnecessary to consider further assignments of error.

Order affirmed. 
      
       BROWN, J., absent, took no part.
     