147 N.W. 793 | N.D. | 1914
Plaintiff seeks to recover damages for personal injuries received by him at a public crossing in the village of McHenry, in this state, and also for the loss of one horse and injuries to other horses, through the alleged negligence of the defendant. The answer puts in issue the allegation of the complaint as to the negligence of the defendant, and alleges that the accident was caused by plaintiff’s own negligence.
At the conclusion of the testimony the trial court directed a verdict, in defendant’s favor, and this appeal is from the judgment entered pursuant to the verdict thus directed.
The assignments of error all relate to the ruling of the court in directing such verdict.
The accident happened about 2 o’clock p. m. on November 24, 1909. Plaintiff, a farmer living some few miles out of town, had hauled a. load of grain to the “farmers’ elevator,” and after depositing his grain in the elevator was in the act of attempting to cross defendant’s tracks at such public crossing on his way to the center of the village, when the accident occurred. The highway at such crossing runs north and south, and is about 150 feet east of the railway depot. Plaintiff' approached such crossing from the north, and his view to the east,, the direction from which the defendant’s passenger train came, was completely obstructed until he reached a point some 30 or 40 feet from the track. He was familiar with such crossing, and knew the situation as to obstructions by buildings, etc., having used it many times during' the preceding eight years. He was also familiar with the time such passenger train was due to arrive at McHenry, and had seen it come into town frequently prior thereto, and knew it was about due at the-time he attempted to cross the tracks. He was driving a four-horse-team, — one team ahead of the other, — and had a double wagon box or grain tank. The ground was frozen solid. We here quote from plaintiff’s testimony as follows: “I unloaded the wheat, and drove out, and. tied my team on the north side of the elevator, some little distance from
Plaintiff’s witness, Ole N. Eide, testified: “I was on the platform in front of the depot in McHenry at the time of this injury and accident. I saw the plaintiff, Gast. I think the train was early that day. I think it was fifteen minutes until one of the trains came in, it was along in that neighborhood. I should judge it was nearly 100 feet from the depot to the crossing. I was about 100 feet west from the crossing. I was looking right at plaintiff coming across the tracks, and at the train. I think the train was between the farmers’ and Great Western elevators when the team was coming pretty close to the crossing. Prom the farmers’ elevator to the crossing should judge it would be about 300 feet. I don’t know the rate of- speed the train was approaching. They were going pretty fast. I suppose the power was shut off some. When the team and train got together, it struck both the pole team and the leaders. Of course the leaders lunged against the end of the tongue, and the tongue broke, and both teams turned to run away, and went down. They turned toward the depot. The nigh horse was killed, and I could not see the other horse. I should say the engine was driven 30 feet after it struck the team. I never measured it. About the length of the wagon and horses I should judge, or a few feet
The witness Malmstad testified: “I was on the depot platform in front of the Northern Pacific depot in the village of McHenry at the time of the accident. I was on the east side of the platform, the extreme east end, about 140 feet from the P. V. elevator. I saw the accident. I just went to look towards the Monarch elevator, and saw the team coming from the east going towards the crossing, and the train was right there, and I see they were going to collide together, and the minute the team got on the crossing the engine hit the team right there. The crossing is about 30 to 40 feet from the P. V. coal shed as near as I could judge. As near as I can recall, the train was on this side of the coal shed when Gast’s team swung into sight on the way past the tracks. I should judge the engineer could not see the team when they first came past the coal shed. The coal sheds would have obstructed the view of the engineer, but nothing after that. A man has to get past the coal shed before the engineer would be able to see him. It was somewhere around 40 feet from the coal shed to the crossing. After the team swung around the coal shed the engine was on the far side of the coal shed, about 300 feet away. I did not hear or see the whistle or bell ring. I saw no effort to stop the train. I don’t know how fast the train was going. The engine moved something over 60 feet after striking the team. When the engine struck the team he had four horses, two in the lead and two on the pole; and as the team come from the north, going south, the lead team was partially across the track and was cut off by the engine right between the leaders and the pole team, and either broke the tongues and chains, anyway the lead team went to the south of the cowcatcher on the engine, and it caught the horses and they got tangled upon the engine, and it drug the pole team and wagon, and the whole thing was drug right off. Something over two rail lengths. The lead team broke away. The pole team stuck right to the engine.”
The witness Euttle, among other things, testified: “I saw the plaintiff on the day of this accident. He had been doing business with my
The defendant Thomas Costello was called by plaintiff for cross-examination under the statute. He was the engineer on the passenger .train, and had been in defendant’s employ for about eight years. He described the train as consisting of a combination mail and baggage car, combination smoker and passenger coach with smoking compartment in one end, and a day coach, engine, and tender. He testified that the engine was fully equipped with air brakes, safety appliances, drivers, and tender brake. He says the air brakes were in perfect condition and responded perfectly to operation; that they were the Westinghouse standard brakes, and would throw a pressure of about 70 pounds to the square inch upon the drive and coach wheels. In describing the accident he testified: “I was approaching the crossing at the rate of 10 or 12 miles per hour. The steam was shut off. I shut off the steam down in the yards, about half a mile before I came to the crossing. The train was drifting, sliding in on its momentum. If the brakes were working properly I think I could stop the train at a distance between 150 to 200 feet. I was about 200 feet from the usual stopping place at the time of the accident. I knew where the farmers’ elevator was. I usually put on the air brakes just about at that crossing, and apply them lightly and bring the train to a gradual stop. I think that •crossing is about 250 or 300 feet from the usual stopping place. I apply a slight pressure, from 5 to 7 pounds. This will bring the train to a gradual stop from within 200 feet. That would be the first application, and the second application would be more to bring the train to a
The witness Niles testified that he had been in the employ of the defendant company for two years as engineer, and three years as fireman, and understood the operation of starting and stopping a passenger train, and gave his opinion as an' expert that if “everything was working to the advantage of the engineer, and the equipment was in first-class shape, a class ‘O’ engine, pulling a train consisting of three cars (such as the train in question) the train traveling at from 10 to 12 miles per hour on a level track with the power shut off sometime before, should make the stop at from 30 to 50 feet without using sand on the rails. If rails are slippery, wet or ice-covered,' you would not have the braking power, as if the rails were in good condition. The emergency brake is the brake that is applied with full force, where you make use of all the braking power. The sand is applied as a part of the emergency brake or application. The sand valve should work immediately at full force until the train is all on the sand.”
The foregoing is substantially all the testimony offered by plaintiff, in the light of which we are asked to reverse the action of the trial court in granting defendant’s motion for a directed verdict. Hnder the well-settled rule we are to view such testimony in its most favorable light for plaintiff; and we shall assume, for the purposes of this case, that the defendants were guilty of a lack of due care in approaching the crossing in question at the time of the accident,. and will consider the
See Hope v. Great Northern R. Co. 19 N. D. 438, 122 N. W. 997, which is a case involving facts very similar to those in tbe case at bar; also Christopherson v. Minneapolis, St. P. & S. Ste. M. R. Co. post, 128, 147 N. W. 791; also West v. Northern P. R. Co. 13 N. D. 221, 100 N. W. 254; Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531.
As stated by tbe supreme court of Ohio in tbe recent case of New York, C. & St. L. R. Co. v. Kistler, 66 Ohio St. 326, 64 N. E. 130, 12 Am. Neg. Rep. 343: “To drive upon a crossing without first looking for passing trains is also negligence. The looking should usually be just before going upon tbe crossing, or so near thereto as to enable tbe person to get across in safety at tbe speed be is going before a train within tbe range of bis view of tbe track, going at tbe usual speed of fast trains, would reach tbe crossing. There should be such looking before going upon tbe track, even though there was a looking farther
Indeed, appellant practically concedes that he was guilty of contributory negligence in approaching such crossing; but he argues that such contributory negligence is no bar to his recovery, for the reason,, as stated, that defendants, under the doctrine of “last clear chance,” might, by the use of due care, have avoided the accident. Appellant cites and relies upon Welch v. Fargo & M. Street R. Co. 24 N. D. 463, 140 N. W. 686, and authorities cited. Also Bogan v. Carolina C. R. Co. 129 N. C. 154, 55 L.R.A. 418, 39 S. E. 808.
As we view it, there are two insurmountable barriers to plaintiff’s-recovery under the rule of “discovered peril or last clear chance.” First, negligence of the defendants in not using reasonable care to avoid injuring the plaintiff after discovering his dangerous situation is not. alleged in the complaint. On the contrary, the negligence alleged in the complaint consists of specific acts as follows: “. . . defendants ran one of their locomotives with a train of cars attached, across said highway at said crossing, at a great and negligent rate of speed and without warning of any kind.” Having alleged the specific acts of' negligence relied upon, it is well settled that plaintiff is restricted in his proof accordingly. Hall v. Northern P. R. Co. 16 N. D. 60, 111 N. W. 609, 14 Ann. Cas. 960; 14 Enc. Pl. & Pr. 342, and numerous-eases cited; Hart v. Northern P. R. Co. 196 Fed. 181. The authorities relied upon by appellant are not in point. They are cases involving-complaints charging negligence under a general allegation. This court,, in line with numerous authorities from other jurisdictions, has adopted the rule in Welch v. Fargo & M. Street E. Co. supra, and the other-cases cited therein, that “the doctrine of discovered peril or the last clear chance can be urged under a general allegation of negligence in the complaint;” but our attention has been called to no decision by this court extending such rule to cases like the one at bar where specific-
Affirmed.