Crowson v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co., 161 N.W. 725

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

161 N.W. 725 | N.D. | 1916

Lead Opinion

Bruce, J.

This is an action to recover damages for injuries sustained in a crossing accident. The accident occurred at Burlington, North Dakota. The main line of the defendant railway company ran east and west. Forty-three feet 6 inches south of the main track was a sidetrack. On this sidetrack was a string of box cars, the westerly one of which projected some 22 feet into the street on which plaintiff was driving, and the easterly one of which was probably some quarter of a mile to the east. Though the westerly car projected into the street, it appears that there was plenty of room to keep on the 18 or 20 foot crossing, which was constructed by the railway company and provided for by statute, and to pass the same, all that was necessary being to turn slightly to the west and “hook around” the car. The plaintiff was well acquainted with the crossing, it having been his *104custom for some time to pass over the same about twice a week. At the time of the accident he was driving a four-horse team attached, to a heavy farm wagon with a grain tank in which he had been hauling wheat. One team was hitched to the pole of the wagon, while the other was ahead of it and attached to the wagon and drawing it by means of a chain attached to the pole and with a separate whiffletree. This left the lead team about 18 inches ahead of the noses of the pole team, and the rumps of the pole team were about 2£ feet from the front of the grain tank. The street was 63 feet wide. The wind was blowing from the northwest. Plaintiff had crossed the track and unloaded his grain and then had driven to a store some 125 feet south of the sidetrack. He then started on his return journey. Prom this store he had a view of the track for some mile and a half beyond the cars on the sidetrack and the elevator. The cars, however, on the sidetrack, extended from the crossing for a distance of about a-quarter of a mile, and for this distance the train could not be seen. He saw no sign of a train and started towards the crossing. He knew that a train was due at about this time. He knew that trains passed constantly up and down the track. He did not know whether the train that was due at that time had passed or not. When he was approaching the track, he looked to see if any smoke could be seen above the line of box cars, and saw none. He heard no bell or whistle. The train was running at a speed of about 20 to 25 miles an hour, and he himself was traveling at a rate of about 4 or 4£ miles an hour. This shows conclusively that at the time he left the store he either must have seen the train or it was behind the line of box cars, as it only took plaintiff about three fourths of a minute to reach the track, and it would have been impossible for the train, traveling at the rate stated, to have traveled the quarter of a mile of the box cars and the mile and a half to the southeast in that time.

The distance between the sidetrack and the main track was 43 feet 6 inches. It was 25 feet from the tip of the noses of his lead horses to the front end of the grain tank. Plaintiff was standing 18 inches, or at the most 36 inches, from the front of the grain tank. He testified that he saw the train approaching just as soon as he passed the box car on the sidetrack. It is perfectly clear that directly after he *105got around the box car he could have seen the train. It is also perfectly clear that, knowing that a train was liable to pass at any time, being thoroughly conversant with the crossing, having crossed it numerous times, and, as he himself testified, having crossed it twice a day for some time since, he knew the dangerous nature of the crossing, and that it was his duty to stop as he reached the end of this car and to look for approaching trains. If he had stopped when he reached this place there would have been 17 feet between the noses of his lead team and the track, or 15£ feet from the overhanging cars. In addition to this it would have been a very simple matter to have turned his lead team to the left, or, in fact, both of his teams and his wagon, as the passage between the two tracks was clear and unobstructed and could have been driven upon. If this had been done, he would not have been run into. Instead of this he chose not to stop at all and to recklessly try to cross the track and in front of the train, which he says was going at a rate of 20 to 25 miles an hour, and which, when seen, was only 125 feet distant, and this was a four-horse team and a grain tank which would cover a distance of nearly 40 feet.

The evidence discloses as clear a case of contributory negligence as could well be imagined, and the trial judge did not, therefore, err in granting the motion of the defendant and in dismissing the action. Haugo v. Great Northern R. Co. 27 N. D. 268, 145 N. W. 1053; Christopherson v. Minneapolis, St. P. & S. Ste. M. R. Co. 28 N. D. 128, L.R.A.1915A, 761, 147 N. W. 791, Ann. Cas. 1916E, 683; Wallenburg v. Missouri P. R. Co. 37 L.R.A.(N.S.) 135, note; Gast v. Northern P. R. Co. 28 N. D. 118, 147 N. W. 793; Sherlock v. Minneapolis, St. P. & S. Ste. M. R. Co. 24 N. D. 40, 138 N. W. 976; Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997.

The judgment of the District Court is affirmed.

Rehearing

On Petition for Rehearing.

Robinson, J.

I approve this decision. It would be a great detriment to the public if railway trains were to move like teams. They must go. It is the duty of every person to use great care and caution in crossing a railroad track. ' .