St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-03-19
THE COURTS.
Supreme Court.

public street across railroad track, was
struck by a train of cars, the approach of
which he did not discover until immediately
before he drove his horses across the track.
The view of the track in both directions was
partially INSTRUCTED The evidence
going to show that the plaintiff was
mindful of the danger and watchful,
according to his reasonable Judgment, to
avoid it.: that at the time when he might first
have seen or heard the train, he had reason
to suppose that no train was coming from
that direction, while his attention to the
track in the opposite direction was more APP
parently necessary; that the cars were even
close at hand, running at a high rate of
speed, and he in place where he could not
safely turn his horses, nor hold them before
the passing train, it is considered negligence
was not conclusively imputablc to the plant
if by the law, but that it was for the jury to
determine whether the plaintiff was negli-
gent.
To run locomotive and train of cars
which cannot be readily stopped, at high
rate of speed and without any signal by bell,
whistle or otherwise, across much Travelled
public street in a village where the crossing
is dangerous to travellers by reaaon OF OBJ
structions concealing the approach OF trains,
no excuse appearing for the omission TO give
signal of its approach, is negligence although
there exists no statutory requirement re-
specting the giving of such signals.
One who is called upon to exercise care to
to avoid danger from the acts of others may
in regulating his own conduct, have regard
to,the probable or apprehended conduct of
such other persons; and to the presumption
that they will act with reasonable caution
and not with culpable negligence.
The court instructed the jury to disregard
the opinions of expert witnesses, based upon
hypothetical statements of facts, if the jury
should find the hypothesis to be not in ac-
cordance with the facts. Held no error.
The plaintiff having been a farmer for
many years, and engaged in carrying on a
farm, was competent to testify as to the
value of his own labor. 1t was proper sub
ject for the opinion of witnesses.
The question of granting new trial be-
cause of the conduct of counsel considered
as being within the discretion Of the trial
court.
The order refusing new trial is afirme d..
DICKINSON, j..
DISSENTING OPINION.
I dissent. It is clear that this crossing is
to one coming from the north very danger
Gus, requiring unusual care and watchful-
ness to avoid trains crossing either from the
east or west. This is so from buildings on
each side of the street, near the rock cutting
off a view of the track during part of the
time when approaching it. 1t is clear also
that plaintiff was perfectly familiar with it, as
he was in the habit of crossing at it fire.
quently, and he must be supposed
to have known the degree of
care necessary to avoid trains.
1t may be assumed though it is hard to be-
lieved that as he came along Main street he
looked to the west until the intervening
buildings prevented his seeing the track and
saw no train. He may have thought he
could calculate how long train would take
to reach the crossing from the furthest
southwest at which he could see one on the
track up to the time he came to the buildings
and how long it would take him at the
rate he was driving to pass the cross
ing. That, however, was not sure
precaution. Such calculations were liable to
mislead either from a train approaching
more rapidly than he took into account on
his team going more slowly than he suppos ed,
too liable to mislead, to be permanently re-
lied upon to the neglect of means that with
absolute certainty would apprise him of a
train coming from the west when he came to
point forty feet from the track, he had only
TO look towards JlG west anu lie WOulu nave
seen the train and avoided the accident.
To say that one approaches such a crossing
with due care when he relies solely on precau-
ton which the best observation and reflection
would have shown him might not be entirely
safe when he knows there is an infaliable
means to avoid danger requiring no time nor
effort and so obvious that ninety-nine men
in hundred would have instinctively, in
voluntarily as it were resorted to it COM
pounds, as appears to me all notions of care
in approaching such danger. l do not
overlook the fact that as he approached
greater attention was required
toward the east than the qDeSt
but the turning of his attention from the
east to the west for half-second would have
showed him the danger when forty feet
from the track. think he was grossly ne
gligent.
GILFILLAN, G. J.
James Tolbert appellant, VS.. Hiram T. Hor-
ton and George G. Sherman respondents.
Syllabus-The owner of personal property
mortgaged it to the plaintiff, with intent to
defraud creditors, the MORTGAGE being also
privy to the fraud.
The mortgagor reclaimed possession Of the
property and subsequently executed to the
defendant who was his creditor, a second
mortgage upon the property, in which the ex-
istence of the prior mortgage was recited.
In contest between these mortgages,
claiming under their respective mortgages;
Held, First-The junior mortgage by rea
son of the recital in his mortgage is to be
conclusively deemed to have had actual no
tce of the prior mortgage.
Second-As simple creditor of the mort
gagor, not having by legal process acquireda
lien upon or property in the mortgaged chat
tells, and not seeking relief in aid of any le-
gal process against the property, the defend
ant Gunior mortgagee) cannot attac:
the prior mortgage for fraud;
hor is his right as a
creditor to assail the prior mortgage for fraud
strengthened by the fact that he is a subse-
quent MORTGAGE.
Third-The statute which provides that
every mortgage, where the possession re-
mains in the mortgagor, shall be void, as
against creditors, and as against subsequent
purchasers and mortgages in good faith, I'M
less it appears to have been executed in good
faith, does not apply nor have the effect to
avoid mortgage, as to subsequent mort
gagee, who took his mortgage with actual
notice of the prior incumbrance.
Judgment reversed. DICKINSON, j.
DISSENTING OPINION.
I do not think that the term Gin good
faith' as applied in this statute to subsequent
purchaser or mortgage includes the ele-
ment of want of notice of the prior mortgage :;
or which is the same thing, do not think
that the fact of such notice renders the subse-
quent purchaser or mortgage. purchaser
or mortgage in bad faith.
It seems to me that the term Gin good
faith'' as here asked has the same meaning
when applied to subsequent, as
when applied to the prior mort
gagee; that it means one who has purchased