Bailey v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Respondent's petition for rehearing is denied. It presents *Page 124 nothing new in the way of argument, but does emphasize two features with respect to which counsel for respondents is entitled to have something more said.

It should have been stated in the opinion that the evidence for plaintiffs indicated that a strong wind was blowing from the south at the time of the accident. So the statement in the opinion, to the effect that if the deceased had made timely use thereof their sense of hearing "doubtless would have given them timely warning" of the train's approach, is attended with some qualification. However, that does not alter the conclusion that any reasonable degree of care on their part would have enabled the young men to see the train in time to have prevented the accident. It may be also that we went too far in referring to the evidence as indicating by a "compelling preponderance" that the whistle signals for both stations and crossing were sounded and that the bell was rung. The record may or may not sustain that conclusion. The evidence was conflicting and it is not for us to determine the fact. But, for the reasons stated in the opinion, we considered the determination of that particular issue immaterial because of our conclusion that the whole record compelled us to find contributory negligence as a matter of law.