127 N.W. 993 | N.D. | 1910
Action to recover for personal injuries occasioned by a collision with defendant’s train at a public crossing. Plaintiff had judgment in the court below and defendant appeals both from the judgment and from the order denying its motion for a new trial.
The assignments of error are all grouped under two subdivisions in appellant’s brief, its contentions, briefly stated, being, first, that the plaintiff, as a matter of law, was guilty of contributory negligence in ■approaching and driving upon the crossing in question at the time of the accident, precluding a recovery; and second, that the verdict is excessive and that the court erred in denying defendant’s motion for a new trial for that reason. I
The rules governing the courts in determining the question of contributory negligence in cases of this character are too well settled to require restatement at this time. Counsel do not disagree as to the rules of law applicable, and therefore we deem it necessary merely to call attention to the recent case of Pendroy v. Great Northern R. Co. 17 N. D. 433, 117 N. W. 531, and cases therein cited, for a full and, as we believe, accurate statement of the law upon this subject. In this, as in most cases of this nature, the chief controversy between counsel arises over the application of such rules to the particular facts involved. It becomes necessary, therefore, to review the facts in the case at bar, as far as material, and to those facts apply such settled rules, stating our conclusions therefrom. In narrating the facts, those regarding which there is a substantial conflict will and properly should be stated in the light most favorable to plaintiff.
With these preliminary observations, we proceed to a consideration of the facts.
At the time of the accident, being at about 10 o’clock a. m. of June 9, 1908, plaintiff, a man eighty-two years of age, was en route from Valley City, this state, to his farm, located about eight miles southeast of said place. . He was alone and was driving a team of horses hitched to a light platform buggy. The accident happened at a public crossing over defendant’s railroad track some few miles from Valley City, over which crossing plaintiff was required to pass and had passed on many previous occasions in going to and returning from his farm. At this crossing the highway runs in an easterly or northeasterly direction and the defendant’s railroad track runs from the
In the light of the facts as above narrated, although the question is not free from doubt, we do not feel justified in holding as a matter of law that plaintiff was guilty of such a want of care as to preclude a recovery. It is only in rare cases that a court is warranted in determining the question of contributory negligence as a matter of law. If it can be said that different minds might honestly differ as to the inferences and conclusions to be drawn from the testimony, it is properly a case for the jury. Under the state of the proof as disclosed in this record, we are not prepared to say that reasonable minds might not honestly differ upon the question as to whether plaintiff exercised that degree of care for his safety which ordinarily prudent persons would be expected to exercise under the like conditions. The care exercised by plaintiff in the case at bar is, we think, fully as great, if not greater, than that exercised by Coulter in his case against the Great Northern Pailway Company (5 N. D. 568, 67 N. W. 1046), yet this court held there that the question was one properly for the jury. We conclude that the trial court did not err in submitting the case to the jury.
Appellant’s only remaining contention is that the damages awarded by the jury are excessive and are the result of prejudice and passion of the jury. We are unable to concur in this view. One thousand two hundred and fifty dollars is the sum awarded. In view of the nature