The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1895-02-08
THE VERDICT cONFIRriED.
The Supreme Court. Decides Against
IL the Street Railway in the &
Baumgartner Case.

line case or Joseph Baumgartner VS..
the Mankato Street Railway company
has just been decided by the supreme
court in favor of Baumgartner.
In August, 1893, Mr.. Baumgartner
was driving along Front street on a
load of hay and when near the Clifton
house in attempting to cross the
street Car track the wheels of his
wagon caught on the rails which pro-
truded about two or three inches
above the surface of the street, and
his load was overturned throwing him
on the wagon pole behind his horses
which ran away and injured the
plaintiff,
The case was tried at the last May
term of court and was very hotly con-
tested on both sides. Thos. Hughes
and e. P. Freeman appeared for the
plaintiff and Lorin Cray and Pau &
Young appeared for the defendant.
The trial in the lower court resulted
in a verdict of $4,000 for plaintiff.
The case involves very important
legal principle as to the liability of
street railway when the street gets
worn away from the rails on the out
side by public travel. The company
claimed that it was the duty of the
city to keep the street connected with
the rails OF their track outside. Judge
Severance charged the jury that this
duty belonged to the street railway
company and the supreme court sus-
tanned him in this ruling. Judge
Buck wrote the decision and the syla-
bus is as follows:
The City of Mankato, having au-
thority so to do, granted to a street
railway company the right to lay it's
tracks and operate it's railway in the
| streets OF said city. The ordinance
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 main
tanned that carriages and vehicles of
every kind can easily and freely cross
said track at any and all points there
of with the least possible obstruction.
The ordinance also provides that the
railway company "shall repair any and
all injury done to the streets, side
walks, curbS or cutters by the con-
structiOn or repairing of the tracks
along the streets and to protect and
save harmless the city of MankatO
against any and all claims for damages
arising from or caused by the con-
StructiOn or management OF the tracks
or roads herein provided for" The
railway company accepted this Ordi-
nance with all its provisions and con-
ditiOnS and expressly made the ordi-
nance contract between the parties,
and thereupOn it constructed its track
along the center line of Front street
in said city. On the 3ISt 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 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 adj
VantageS of the corporate franchise
from the city under the provisions of
the ordinance, it was it's contract duty
to lay and maintain their rails that
carriages could easily and freely cross
their track, and this includes the duty
of filling up outside its rails when the
earth becomes worn or washed away
so as to make safe connection between
the tracks and the balance of the
street, and that this is continuing
duty under the terms of the ordinance.
Held further, that the railway COM
pany, in making such repairs and for
such purpose cannot be deemed tres
paSSers. especially where such repairs
are made in reasonable, 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 3lst day of August, 1898,
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 sur
face of the said street outside the
rails not to exceed three inches, the
wheels of his wagon caught upon the
outer edge of one of the rails of the
defendant street railway track and
slid along the same for some distance,
turning plaintiffs wagon nearly at
right angles with the street, and be-
cause thereof plaintiffs wagon be-
came unbalanced and tipped over,
throwing plaintiff upon the whiffie-
trees behind his horses and in front
of his wagon. and plaintiffs horses
being thus frightened ran away and
he was thereby seriously injured.
Held, that the custom of defen-
dant's negligence was properly SUBJ