St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-02-07
Interests MankatO.

Joseph Baumgartner respondent,
VS.. The City Of Mankato and the
Mankato Street Railway Company,
appellants. Syllabus-The city of
Mankato, having authority so to do,
granted to a street railway COM
pany the right to lay it's tracks and
operate its railway in the streets
of the said city. The order
granting this right provides that the
tracks of said railway shall not be
raised above the surface Of the street
and the rails shall be so laid and
maintained that carriages and We
hicles of every kind can easily and
freely cross said track at any and all
points thereof with the least possible
obstruction. The ordinance also
provides that the railway company
shall repair any and all injury
done to the streets, sidewalks, curbs
or cutters by the construction or re-
pairing of the tracks along the
streets, and to protect and save
harmless the city of Mankato against
any and all claims for damages ariS-
ing from or caused by the construc-
ton or management of the tracks or
roads herein provided for" The
railway company accepted this or
dinance, with all it's provisions and
conditions, and expressly made the
ordinance q contract between the
parties, and thereupon it constructed
1ly n hn fn1s limo Of
Front street in said city On the 31st
day Of August, 1898, and for period
of several weeks prior to that date,
the surface of the ground along the
outer side of and adjoining the rails
of said street railway in Front street
in said city had been worn away by
public travel therein so that in
places the surface of the street
outside of and next to such
rails was from one to three inches
below the upper surface of said rails.
Held, that the railway company
having received the benefits and ad-
Vantages of the corporate franchises
from the city, under the provisions
of the ordinance, it was it's duty to
so lay and maintain it's rails that
carriages could easily and freely
cross its track, and this includes the
duty of filing up outside it's rails
(when the earth becomes washed
away so as to make safe connec-
ton between the tracks and the bal
ance Of the street, and that this is
a continuing duty under the terms
Of the ordinance.
Held, further that the railway
company, in making such repairs
and for such purpose, cannot be
deemed trespaSserS, especially where
such repairs are made in reason
able, prudent and safe manner for
the convenience and safety of the
travelling public, and SO as not to
unnecessarily interfere with the use
Of the street.
On the 31st day Of August. 1893,
plaintiff, with team Of horses and
wagon and load Of hay, upon which
he was riding, attempted to and
did drive across the defendants
track, and in SO doing, because of
the. rails of the track being above
the surface of said street outside
the rails not to exceed three inches,
the wheels Of his wagon caught
upon the outer side of one OF the
rails of the defcndant's street rail
way track, and slid along the same
for some distance, turning plaintiffs
wagon nearly at right angles with
the street. and because thereof
plaintiffs wagon became unbal-
anced, and tipped over, throwing
plaintiff upon the WhiAle trees be-
hind his horses and in front Of his
wagor, ana plaintiffs horses, being