
    Helen Hendrickson vs. Great Northern Ry. Co.
    Argued Jan. 9, 1893.
    Decided Jan. 20, 1893.
    Negligence, a Question for the Jury.
    
      Held, that whether plaintiff’s intestate was guilty of contributory negligence was, under the evidence,'a question for the jury.
    Appeal by defendant, Great Northern Bailway Company, from a. judgment of the District Court of Meeker County, Poxcers, J., entered-September 14,1892, for plaintiff for $2,251.34 damages and $284.73. costs.
    Michael Hendrickson was killed June 30, 1890, at a grad© crossing in said county. His widow, Helen Hendrickson, was appointed administratrix of his estate, and brought this' action to recover $10,-000 damages under 1878 G. S. ch. 77, § 2, as amended by Laws 1889, ch. 109. At the first trial the court directed a verdict for defendant, on the ground that on the undisputed facts, the deceased was chargeable with contributory negligence. Plaintiff moved for a new trial, but was denied. On appeal this court reversed the order, on the ground that the question should have been submitted to the jury. Hendrickson v. Great Northern lly. Co., 49 Minn. 245. A second trial was had May 18, 1892. The facts appear in the report of the former appeal. The jury returned a. verdict for plaintiff, and assessed her damages for the death of her intestate at $2,000, and by stipulation of the parties they assessed damages for the loss of horses and wagon at $200. Judgment was entered on the verdict and defendant appealed. The discussion here was on the evidence, whether it so conclusively established contributory negligence on the part of deceased, that the trial court erred in not directing a verdict for defendant as it requested.
    
      M. D. Grover and S. L. Campbell, for appellant.
    
      Francis Bergstrom, F. D. Larrabee, and Shaw & Cray, for respondent.
   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.)  