The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1911-03-24
ALSO DECLINED TO SET ASIDE
VERDICT OF THE JURY.
Action Against Northwestern Road:
Plaintiff Given Judgment of
Thousand Dollars.

Judge Frau To-Day MED an order
denying the motion of the defendant
| for judgment Notwithstanding the.
verdict of the jury and denying the
defendants motion for an order set
ting aside the verdict of the jury
and granting a new trial, in the per-
sonal injury suit of Mrs. Emma Erd-
ner as administrative of the estate
of Lee F. Foley, deceased, VS.. the
Chicago and Northwestern Railway
company. This was an action to re-
cover $4,000 damages from the road
for the death of the boy. The May
bee boy was killed at the same time,
and the same circumstances fit the
two cases. The Foley case was
tried at the November term of court
and the jury brought in a verdict
for the plaintiff and placed the dam
ages at $1,000. The defendant made
the motions, and will now no doubt
take an appeal.
In making the order, Judge Pau
made the following memorandum,
which defines the duty of railway
companies to use care where people
are in the habit of using tracks
without objection by the road, as
is the case in this city and else
where:
The Memorandum.
IF the defendant railway company.
for long time prior to the happen
inc nf tho anniAant oil
track and right of way at the place
in question TO be used by the pub
lie, although it never sanctioned
such use or acquiesced in it save
by it's silence and non-interference,
it and its servants would then have
reason to apprehend the presence of
persons on said track and right of
way at said place and it seems to
me that the running of train in
the night time with the engine re-
versed, or with the tender in front,
cutting off the view of the track
ahead from the engineer and fire.
man, without headlight to tighten
the track as they advanced; and
possibly without any light to signal
their approach; running at a high
rate of speed while passing a train
on another track going i'm the opposite
direction, would be an act of negli-
gence for which they should be held
liable.
Court Should Take Evidence.
THE action being for a judgment
Notwithstanding the verdict, the court
should take the evidence in it's most
favorable aspect to the plaintiff, and
, this being so, we then have the
train running as before stated, with
out a light to signal its approach:
without opportunity of the men run
ming the engine TO see ahead, pass
ing over a portion of track at or
near its yards frequently used by
the public with at least the silent
acQuiescence of the railway com
pany, and if the railway company
did not owe to the person injured
and killed a special duty, it seems
to me is not the point or material
in this case. If they owed the duty
to the public, then they owed the
duty to the person so injured and
killed, duty as a part of the pub
lie.
Allowed Conditions to Exist.
Having permitted and allowed
conditions to exist such as. there is
evidence in this case tending TO
prove, they had reason to anticipate
the presence of trespassers, if we
SO call them, and should have taken
proper precautions to avoid injurng
them, and one of the most reason
able precautions that could be re-
quired of the company was at least
to give warning of the approach OF
the train by proper headlight such
as ordinarily used in passing over
their tracks in the night time. And,
being impressed that the case at
bar comes within what is said by
1.-The supreme court in the case of Ell
kingston VS.. Great Northern Railroad
company, SO Mimi, page 1872, viz:
l.Where the company expressly or
by silent acquiescence permits its
yard or premises to be freQuented
or used by the public generally, or
permits such a condition respecting
the use thereof to exist as to make
lit reasonable to anticipate the pres
ence of trespassers, proper precau-
tons must be taken to ascertain
whether they are present, that in
jury TO them may be avoided
Refused to Order Judgment.
And feeling that this is the law
applicable to the case in question,
| shave refused to order judgment
not withstanding the verdict. 1t seems
to me if the defendant is entitled to
relief in this matter, it is for a
judgment Notwithstanding the YER
dict, and no special reasons having
been pointed out why new trial
should be granted herein, | have re-
fused to grant a new trial. nor can
| say that the verdict is so ex-
cessive that ii appears to have been
given under the influence of passion
or prejudice"
In Every Home