[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.] Berkson v. Anderson (Iowa) 87 N. W. 402. Coddington Sav. Bank v. Anderson (Neb.) 89 N. W. 787. Concordia Loan & Trust Co. v. Parrotte (Neb.) 87 N. W. 348. Cotton v. Southwestern Mut. Life Ass'n (lowa) 87 N. W. 675. Decker v. Decker (Neb.) 89 N. W. 795. Farmers' & Merchants' Bank v. Mosher (Neb.) 88 N. W. 552. First Nat. Bank v. Reece (Neb.) 89 N. W. 804. Glynn v. Glynn (Neb.) 87 N. W. 1052. Longueville v. May (lowa) 87 N. W. 432. McCormick Harvesting Mach. Co. v. Scott (Neb.) 89 N. W. 410. Nebraska Nat. Bank v. Hallowell (Neb.) 88 N. W. 556. Oster v. Devereaux (Iowa) 87 N. W. 512, Palmer v. Osborne (Iowa) 87 N. W. 712. Ryce v. Whitley (Iowa) 87 N. W. 694. Stafford v. Harmon (Neb.) 89 N. W. 380. Ure v. Reichenberg (Neb.) 89 N. W. 414. Viall v. First Nat. Bank (Iowa) 87 N. W. 733. Welch v. Browning (Iowa) 87 N. W. 430. Windsor v. Polk County (Iowa) 87 N. W. 704. See End of Index for Tables of Northwestern Cases in State Reports and Additional Tables. THE NORTHWESTERN REPORTER. VOLUME 90. ABBOTT v. WESTERN UNION TEL. CO. (Supreme Court of Minnesota. April 25, 1902.) TELEGRAM-FAILURE TO DELIVER. Complaint, in an action for damages against a telegraph company for failure to deliver a message, construed, and a demurrer thereto held properly sustained by the trial court. (Syllabus by the Court.) Appeal from district court, Hennepin county; Frank C. Brooks, Judge. Action by E. Tavarro Abbott against the Western Union Telegraph Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed. E. Tavarro Abbott, in pro. per. C. M. Ferguson, for respondent. BROWN, J. Action to recover damages for the failure of defendant to deliver a telegram in accordance with an alleged custom and agreement. Plaintiff appeals from an order sustaining a demurrer to his complaint. Plaintiff, a surveyor, had made certain surveys for the Mississippi & Rum River Boom Company, and had agreed with it to testify concerning the same on the trial of an action in which such boom company was interested. On April 4, 1900, he was at the city of Bayfield, Wis., and it was then expected that the trial of said action would come on soon. Plaintiff telegraphed to the attorney for the boom company for information concerning the date of the trial, and the complaint alleges that he gave instructions to defendant's operator at Bayfield to deliver at once any telegram received in response. On the following day plaintiff went to the city of Washburn, Wis., being obliged to do so for business reasons; but before doing so, he requested defendant's operator at Bayfield to repeat and forward any message he might receive to him at Washburn. The complaint alleges that defendant's operator promised and agreed to do so, and it further alleges the custom of defendant company to so forward and repeat messages at the request and instance of the person to 90 N.W.-1 whom they are to be delivered. The message from the attorney, residing at Minneapolis, informing him of the date of the trial, was received at Bayfield after plaintiff's departure for Washburn; but the same was never repeated or forwarded to plaintiff. He alleges that the services rendered by him to the boom company in making the survey were of the value of $113, and that, by reason of the failure and neglect of defendant's operator at Bayfield to forward the message aforesaid to him, he was prevented from attending the trial of the action, and lost his fee. There is no allegation in the complaint that plaintiff paid, or offered to pay, the cost of forwarding the message from Bayfield to Washburn. Plaintiff relies for recovery upon the alleged custom of defendant to repeat such messages. We are of opinion that the demurrer to the complaint was properly sustained. The alleged custom on which plaintiff relies for recovery was a mere gratuity on the part of defendant, and one which plaintiff shows no right to rely upon. The message informing him of the date of the trial was sent by the attorney for the boom company at Minneapolis, and constituted a contract between the attorney and defendant to forward and deliver the message to plaintiff at Bayfield, and defendant was under no duty or obligation for the consideration received by it from such attorney to repeat or forward the message to any other point. The alleged agreement of the operator to do so was without consideration, and not binding upon defendant. It is true that the person to whom a message is directed has a cause of action against the telegraph company for failure to deliver the same in due time, but his right of recovery extends no further than for a failure to deliver at the point to which the message is sent. Any agreement between the person expecting a message and the company to repeat or forward the same to some other point constitutes a new and independent contract, requiring a new consideration to support it. The case needs no further discussion, and the order appealed from is affirmed. GRISWOLD v. GREAT NORTHERN RY. CO. (Supreme Court of Minnesota. April 25, 1902.) RAILROADS-ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE. In an action for personal injuries alleged to have been caused by the negligence of defendant, the evidence is examined, considered, and held to sustain the order of the trial court directing judgment for defendant notwithstanding the verdict of the jury, on the ground of contributory negligence on the part of plain tiff. (Syllabus by the Court.) Appeal from district court, Clay county; L. L. Baxter, Judge. Action by Norris Griswold against the Great Northern Railway Company. Judgment for defendant notwithstanding the verdict, and from an order denying a new trial plaintiff appeals. Affirmed. A. E. Rowe and C. J. Thompson, for appellant. C. Wellington, for respondent. BROWN, J. Action to recover for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had a verIdict in the court below, whereupon defendant moved the court for judgment notwithstanding the same, on the ground that it conclusively appeared from the evidence that plaintiff was guilty of contributory negligence; which motion was granted by the trial court, and plaintiff appealed. Plaintiff was injured by a fast mail train while crossing defendant's railroad track as the same extends over First street in the village of Barnesville, this state, on the 26th of August, 1899. The street on which plaintiff was driving with a team of horses at the time of the accident runs east and west, and the railroad track extends over the same at right angles running in a northerly direction for the distance of about 4,300 feet, when it turns westerly. Plaintiff was engaged at the time in hauling wheat to & mill situated on said First street about 250 feet west of defendant's main track. He had delivered one load, and was returning for another, when struck by the train and injured. When within about 235 feet of the crossing he looked to the north to observe whether a train was approaching from that direction, but saw none. He again looked north at a point about 184 feet from the crossing, when he could see up the track the distance of about 4,000 feet, but saw no train approaching. He then turned his attention towards the south, not again looking to the north until he was upon the track and at about the time of the collision resulting in his injury. He had been employed by the railroad company as an engineer previous to this time at Barnesville, and knew that a train was due from the north at about the time of the accident. A full view of the track to the south was obstructed by box cars standing on a side track, but there was no train approach ing from that direction. Plaintiff's team was walking slowly, about three miles an hour, but, as we have already stated, he did not look to the north again after passing the point 184 feet from the track. His horses were partly across the track when struck by the engine. There was nothing to distract his attention, so far as the record shows, and no reason is shown why he should have directed his whole attention to the south, conceding that he did so, when he knew that a train was due from the north at about that time; nor is any excuse shown for his failure to look towards the north, the direction from which the train came, between the point 184 feet from the track and before crossing the same. There was a section house to the north which obstructed his view for a short distance; but the slightest glance of the eye in that direction, at any time either before or after passing the section house, would have disclosed to him the train approaching at a very rapid rate of speed, and in ample time to have stopped his team and avoided the collision. The fact that the section house obstructed his view to the north is of no im portance, however, because he does not excuse his failure to look in that direction by reason of that obstruction. For his failure to so look the trial court held that he was guilty of contributory negligence, precluding a recovery. We have examined the evidence with considerable care, and reach the conclusion that the trial court correctly disposed of the case, and the order appealed from must be affirmed. Time and again has this court laid down the rule, followed and applied by courts generally, that a person about to cross a railroad track must use his senses of sight and hearing and exercise every reasonable care to avoid coming into collision with an approaching train. Cases very similar to that now under consideration have been decided adversely to the injured party on the ground of contributory negligence, when it appeared, as it does here, beyond question, that the injury was the result of the failure of the injured party to look and listen, when, if he had done so, no accident would have happened. Plaintiff's negligence in this respect is best disclosed by his own testimony, and we quote from the record what he says on the subject: "Q. You don't know how far you were when you looked the first time? A. 235 feet. Q. Then you saw nothing? A. Saw nothing. Q. Then you waited until you were 184 feet from the crossing? A. Yes, sir; about that. I could see the junction from that point. Q. Then you looked again? A. Yes, sir. Q. That junction was how many feet from the crossing? A. 4,384 feet. Q. When did you next look north? A. I did not look north again until I was on the main line. Q. You drove 184 feet towards this crossing without looking north again until you were on the main line? A. I was just about on the main line when I looked again. Q. There was nothing, so far |