121 N.W. 830 | N.D. | 1909
Lead Opinion
This is an action brought by minor children, who are represented by a guardian, and by adult children to recover damages for -the death of their father, Wm. A. Kunkel, whom it is claimed was negligently struck and fatally injured by one of defendant’s trains. The trial court denied defendant’s motion for a directed verdict, and submitted the question 'of its liability to the jury. There was a verdict for plaintiffs, and judgment accordingly. The court denied defendant’s motion for a judgment notwithstanding the verdict. Thereupon judgment was duly entered in favor of plaintiffs and against the defendant. From which judgment this appeal was taken.
The defendant’s main track passes through the city of Fessenden in a general east and west course, the depot being situated on the north side thereof and about the center of the city. Next south of the main ¡track is the passing track, and south of ¡that the house track. The depot and' most of the platform is situated between Fifth and Sixth avenues, which are located north of the track. The residence portion of the city is mostly northeast of the depot, and constitutes what is called the “North Side.” The business portion of the city is mostly southwest and on the south side of defendant’s tracks, and constitutes what is called “South Side.” The streets of the city run east and west parallel with defendant’s tracks and the avenues north and south. The highway running at right angles and about 125 feet west of defendant’s depot is Fifth avenue and
The public generally for several years previous to the time the accident occurred had traveled daily across and along the defendant’s tracks or right of way in said city of Fessenden; the usual route being about as follows: From the east line of Sixth avenue where the same intersects Railroad street across the stile or bridge hereinbefore mentioned across the right of way to a point near the east end of the depot platform; thence west along the platform to some point west of the depot; thence diagonally across the tracks and depot grounds to the northeast corner of Maple avenue. Sometimes they would walk west a short distance, from 12 to 50 feet, on the main track, and thence diagonally across the depot grounds to Maple avenue. This route for the most part was used by people who went from the residence portion on the North Side to the post office and business places on the South side and vice versa. The depot platform extended west of the depot about 25 or 30 feet. There were no steps on the south side or west end of the platform. At the west end of said platform there was an apron sloping to the ground,-from which there was at the time of the accident a fairly well-defined path, on the north side of the main track west to Fifth avenue, over which people sometimes traveled to the sidewalk on Fifth avenue; thence south across the tracks to Maple avenue or north to their destination, as the case might be. Deceased sometimes traveled that route in going to the post office or business portion of the city on the South Side. There was at the time of the accident a path, though not very well defined, across the main track from the north rail, and crossing the south rail at the place where deceased was found after the accident.
The theory of the defendant i® that the company is not liable: “(1) Because the evidence -in this case fails to show that there was a pathway traveled, or other passageway, as alleged in the complaint, -either established by, or suffered and permitted by, the defendant, and upon which the deceased was either impliedly or expressly, invited to pass at the time of his injury, and that from the facts in this case it appears that he was upon the railroad track of the defendant as a trespasser to whom the defendant -owed no duty, except that -of not willfully injuring him, of which willful or reckless injury there is no claim- in the complaint nor proof in the evidence. (3) Because it appears from the evidence that if the deceased -was rightfully upon the right of way or railway track of the defendant at the time declared in the complaint, or at the time he was injured, he was there as a mere licensee, since the place was not, as shown by the evidence, a public highway, and the defendant -owed him no duty except that of not willfully or recklessly injuring him, because
If any of the defendant’s contentions is sustained, then the judgment appealed from must be reversed. If the deceased was a trespasser -on its tracks, o-r right -of way, the defendant owed him no duty except not to willfully, wantonly, or recklessly injure -him, and there is no allegation or proof of such willful or reckless injury.
It is plain that deceased was not a trespasser. The uncontradicted testimony is to the effect that for many- years immediately preceding the accident it had been the custom of people proceeding from -the north.to the south side of -defendant’s tracks .in the city of Fessenden, and vice versa, to use the right of way, platform, and tracks as a footpath, and that a large number of people -passed’ -that way daily. This custom was known to appellant, and it made no objection. About four or five years before the accident, the road supervisor built a walk, bridge, or stile from the northeast or residence portion of the city along the east line of Sixth avenue, where the same intersects Railroad street to the east end of the depot platform, and mostly on its right of way. This walk, bridge, or stile was largely used by pedestrians who also crossed at other places near-by, and who also walked along the track where deceased was injured. The deceased, who resided in the northeast part of the city, was in the habit of passing daily across this stile or bridge and over defendant's platform, right of way, and along and -over its tracks to the post office and places of -business on the South Side, and back -to his residence. The -defendant having knowledge of the use -of this route, and of the building of the bridge, o-r stile, and of persons passing over it, and having made no objections thereto, will be presumed to have assented to it, thus giving to all who traveled this route license therefor. Deceased, therefore, was not
In Swift v. Ry Co., supra, the court of Appeals of New York lays down the following rule: Where the public have for a long time, notoriously and continuously, been in the habit of crossing a railroad at a point not in a traveled public highway, with the acquiescence of the railroad company, such acquiescence amounts to- a license, and imposes a duty upon the company, as to all persons so crossing, to exercise reasonable care in the running of its trains so as to protect them from injury.
In Clampit v. Ry Co., supra, the plaintiff, a carpenter, in going from his house in Des Moines to the place where he was employed in the same city was accustomed to cross defendant’s railway. The crossing of the railway was at aplace much used by pedestrians, just at the foot of a bluff or bank which was approached by a stairway constructed by persons using the footway. While crossing the railway when going to his work, according to his custom, he was
It is contended by appellant that, under the evidence, the deceased was, as a matter of law, guilty of negligence which bars recovery in this action. It contends that, from the evidence, it is clear that he could have seen the train if he had looked along the track from the depot platform, and that it was his absolute duty to do so. No person saw the accident. The deceased, a very short time before the accident, stepped into the depot, and inquired if train No. 105 had gone, and was told that it had. He then left the depot, and started in a westerly direction along the path or right of way, and a short time after was found at a point where a path used by pedestrians crossed the south rail of defendant’s main track. The day was stormy. He was facing the storm. The train backed down the main track in the center of the city towards the only public crossing through a blizzard and storm, with a heavy snow falling and a high wind, such as would undoubtedly obstruct the vision and hearing of any one upon the track or crossing, and such as would also tend strongly to deaden and muffle the sound of wheels, and as far as the evidence shows, without giving any signal, and without any brakeman or lookout on the back end of the cars. If the defendant had had some one on the train on top of the back end of the cars, or upon the ground, to warn persons on the track or crossing of its approach, the accident might not have happened.
If there is any substantial conflict in the testimony in 'a negligence case either as to defendant’s negligence, or as to the contributory negligence of the person killed or injured, and where different minds might reasonably draw different conclusions as to these questions from the evidence, the case must go to the jury. In this case the jury must have found that defendant was negligent, and •there is sufficient evidence to sustain such finding. Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 489; Ry. Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, 38 L. Ed. 136; Jones v. Ry. Co., 128 U. S. 433, 9 Sup. Ct. 118, 32 L. Ed. 480; Dunlop v. Ry Co., 130
In Ry. Co., v. Ebert, supra, the accident happened on the grounds of the company, on a cold, blustering, snowy day in January — a day on which one exposed to its blasts would use all the expedients at his command to ward off, or at least temper, its severity. Ebert was employed hauling ice, and was muffled up to protect himself from the cold, going along at a slow pace with his load. On his route were several tracks of the defendants, which it was necessary for him to cross. These tracks, or some of them, ran into Buckingham’s elevator, and as he was about crossing track No. 2, so-called, about 40 feet from the elevator, a train of cars, not drawn, but propelled from the rear by an engine, ran into the wagon, pushed the horses and plaintiff into the elevator, killing the horses, and seriously injuring the plaintiff. There was no outlook upon the train, no flagman at the crossing, and no means used by the servants of the company to apprise plaintiff of the approach of the train, though one or two witnesses testified the bell was rung. It does not appear that plaintiff made .any special effort to see if any train was approaching on that track. He says he saw cars on it, but they were not in motion! The Supreme Court of Illinois said: “It was great negligence of the company in failing to have some person on the train on top of the forward cars, or upon the ground in front. It is no excuse that the day was cold and stormy, and that a person posted on the top of the cars would be exposed to danger. It is the duty of the servants of the company to expose themselves to danger when necessary, not to rush into danger recklessly, but to maintain their post, let what may happen. Had a vigilant man been on the front car, it is not at all probable this accident would ■have occurred. Indeed, it is quite certain it would not. The accident, then, having been occasioned by the negligence of the com
In Pendroy v. G. N. Ry. Co. (N. D.) 117 N. W. 531, supra, the defendant backed one of its trains against plaintiff’s automobile at a public -crossing in the city of Towner. The testimony tends to show that plaintiff and hi-s party had been riding around Towner during the evening, and did not see any train or engine; that, as they came down Main street to a point where they could view the track between the two elevators, they looked and saw n-o train coming; that as they approached the track, and when about 10 feet south of the southerly track, the gear of the automobile was changed from high speed to low speed, and at this time they were listening for any sound of the train. The driver of the automobile said that she neither saw nor heard any signs of the train, and proceeded.to cross the track. This court, speaking through Judge Fis-lc, said: “We believe that, under the weight of authority and the better considered cases, that they cannot be held guilty of contributory negligence as a matter of law merely because they did not stop and listen before crossing the defendant’s tracks. A person is bound to use care commensurate with the known or reasonably apprehended danger; but it is only in exceptional cases that the trial -court is justified in taking from the jury the question of the -exercise of suc-h care. The fact that, if the automobile had been stopped, the occupants might have heard the approaching train, and thus have avoided the accident, is not -decisive -of their negligence. Fair-minded men might honestly differ, under all the facts as disclosed by the evidence, whether the exerci-se of such precaution was exacted of them.” The -court further said: “That it was within the province of the jury to say whether plaintiff and his daughter, at and just prior to the accident, were in the exercise of such care as an ordinarily prudent person would be expected to exercise under the like circumstances. In other words, it cannot be said as a matter of law that they, or either of them, were guilty of contributory negligence.”
In B. & P. Ry. Co. et al. v. Landrigan, supra, the plaintiff’s intestate, Thos. Landrigan, was going through the yards of the defendant company in the -city of Washington, D. C., between 11 and 12 o’clock at night. No person saw the accident. There -were four tracks through the yard. Just after a Pullman car passed over the
Under the facts in this case, the question of the negligence of the deceased contributing to the accident was clearly for the jury, as the burden is upon the defendant to prove that the negligence of the deceased contributed to- the accident. The law, out of regard to the instinct of self-preservation, will presume, prima facie, that a person who has suffered death by accident was at the time of the accident in the exercise of ordinary care and diligence, and this presumption is not overcome by the fact of the accident even though no person saw it. Ry. Co. v. Landrigan, supra; Flynn v. Ry. Co., 78 Mo. 195, 47 Am. Rep. 99; T. & P. Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Ry. Co. v. Morgan, 43 Kan. 1, 32 Pac. 995; Teiple v. Hilsendgen, 44 Mich, 462, 7 N. W. 82; Adams v. Iron Cliff Co., 78 Mich. 271, 44 N. W. 270, 18 Am. St. Rep. 441; R. R. Co. v. Nowicke, 46 Ill. App. 566; Ry. Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708; Dalton v. Ry. Co., 104 Iowa, 26, 73 N. W. 349; Keim v. Ry Co., 90 Mo. 314, 2 S. W. 427; Phillips v. Ry. Co., 77 Wis. 349, 46 N. W. 543, 9 L. R. A. 521.
Dr. McGregor stated in his testimony: “I have in my experience examined wounds upon men which I knew to have been inflicted by being crushed or run over by a car, and these -were just such ■wounds as are inflicted by car wheels. These wounds were inflicted by an injury which required great force.” These must have been inflicted from behind, and it required great force to inflict them. “There would be -one cut here, another cut here (indicating), and part of the flesh crushed in places and flattened out where the bones protruded; you could feel they were crushed underneath and broken in numerous places. These wounds were such as I have seen caused by car wheels.”
We fail to find any prejudicial error in the record. The order • denying defendant’s motion for a judgment notwithstanding the verdict was -properly denied. The judgment appealed from is affirmed.
Dissenting Opinion
(dissenting.) As a general proposition I have no quarrel with the statement of the rule .as contained in the third paragraph of the syllabus, namely, that the law, out of regard to the instinct of self-preservation, will presume that the person who has suffered death by accident was, at the time, in the exercise of ordinary care and diligence, and this presumption is not overcome by the mere fact of the accident, even though no person saw it. But under the facts disclosed by the evidence in the case at bar, I am satisfied that this rule is not applicable in the present instance.
I therefore dissent.
Rehearing
ON REHEARING.
A rehearing was granted in this case, and elaborate and exhaustive oral arguments were made on both sides. It was strenuously contended 'by the appellant that the deceased was as a matter of law_ guilty of contributory negligence. After carefully reconsidering the case, we adhere to our former opinion. We think, under the facts, the question of the negligence of deceased contributing to the accident was clearly for ithe jury. It is true that two witnesses saw the train a few minutes previous to the accident — one of them at a distance of 150 feet, and the other one at a distance of 336 feet. Both of them were looking at the train broadside and from the north, while the storm was from the west, and deceased was facing it. The evidence also showed that the snow came in gusts, sometimes stronger than at other times. In Re St. L. & San Fran. R. R. Co. v. Cundieff, 171 Fed. 319, Judge Amidon well says: “The rule which declares that when the 'physical facts’ show that the traveler must have discovered the train if he had looked and listened his negligence becomes a matter of' law can properly
The train was backing down through the'city, in a snow storm, toward a public crossing. No bell was rung or whistle sounded. There was no lookout on the back end of the train, and no flagman near the crossing. The defendant was, under the evidence, clearly negligent. Deceased had a right to presume that warning of the approaching train by ringing the bell, sounding the whistle, or by a lookout would be given to pedestrians. As stated in our former opinion, no one personally witnessed the accident, and the presumption is that the deceased used all ordinary care. The burden of proof is on the defendant to show that he did not. Nio exceptions were taken to the instructions of the court, so it is presumed that proper instructions were given. In Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403, the court says: “It is the duty of railroads to notify the public by some warning of the approach of their trains to crossings, and that if no warning is given which appeals clearly either to the eye or ear, the traveler cannot be held guilty of contributory negligence in failing to discover the train.”
In addition to the cases cited in the original opinion we cite the following: Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; B. & O. R. R. Co. v. Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274; D., L. & W. R. R. Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; C., R. I. & Pac. R. R. Co., v. Sharp, 65 Fed. 532, 11 C. C. A. 337; McGhee v. White, 66 Fed. 502, 13 C. C. A. 608; C., M. & St. P. Ry. Co. v. Donovan, 160 Fed. 826, 87 C. C. A. 600; Henavie v. N. Y. C. & H. R. Ry. Co., 166 N. Y. 281, 59 N. E. 901; Judson v. Cent. Vt. R. R. Co., 158 N. Y. 597, 53 N. E. 514; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362, 54 N. E. 785; Smedis v. R. R. Co., 88 N. Y. 13; French v. R. R. Co, 116 Mass 537; Canning v. R. R. Co., 168, N. Y. 555, 61 N. E. 901. The foregoing authorities sustain our views herein expressed.
Dissenting Opinion
I find no reason to change my dissent filed with the original opinion.
