117 N.W. 531 | N.D. | 1908
This is an appeal from an order of the district court of McFIenry county denying a motion made in the alternative for judgment notwithstanding the verdict, or for a new trial, and also from the judgment entered pursuant to the verdict of a jury.
Plaintiff’s cause of action is based upon the alleged negligence of the defendant railway company in backing one of its trains of cars against plaintiff’s automobile at a public crossing in the city of Towner. The question of defendant’s negligence and of plaintiff’s contributory negligence and the extent of plaintiff’s damages were submitted to a jury, and a verdict returned in plaintiff’s favor for the sum of $350. In addition to a general verdict, the jury returned answers to 12 interrogatories, as follows:
*437 “(1) Was the automobile in question fully stopped momentarily before the same was run upon the passing track where the collision occurred? A. No.
“(2) Was the engine whistle blown a short time before the collision, and while the engine was approaching on the same track upon which the collision occurred? A. No.
“(3) Was the engine bell rung before the collision, while the engine was approaching on the track upon which the collision occurred? A. No.
“(4) Was the brakeman or any employe of the defendant company on the box car or on the flat car in question at the time or immediately before the collision between the train and automobile? A. No.
“(5) At how many miles per hour was the train approaching the crossing in question when the flat car collided with the automobile ? A. About 10 miles per hour.
“(6) Were the air brakes applied before or after the collision with the automobile? A. After.
“(7) Was the engine reversed before or after the collision? A. After.
“(8) Would an ordinary reasonable, prudent man, familiar with the operation of an automobile, have attempted to cross the said railway track with obstructions to the view as were present at that time at the time plaintiff and Mattie Pendroy crossed them in said automobile without stopping the automobile to examine for any impending danger from passing traiiis? A. Yes.
“(9) Was the plaintiff or Mattie Pendroy, either or both, guilty of any negligence whatever in the operating of the automobile or negligent in any degree in operating the automobile upon the Great Northern Railway passing track, just before or at the time of the collision of the train and automobile? A. No.
“(10) Were the defendant’s employes guilty of any negligence in the operation of the train in question at the time of this collision or immediately before the collision between the train and automobile? A. Yes.
“(11) Did the engineer or other employes of the defendant company do anything to cause injury to others which an ordinary prudent and reasonable man would not have done doing the same work, or omit to do anything to prevent injury to others in operating the said train at the time of the collision in question, or shortly before*438 and while approaching the place of collision with the automobile on the passing track, that ordinary prudent and reasonable men, doing the same work, would have done? A. Yes.
“(12) If you answer question No 11 in the affirmative, state fully of what such acts or omissions referred to in the said question consisted. A. Because they did not blow the whistle; because they did not ring .the bell; because the air brakes were not applied at the proper time; because the reverse lever was not applied at the proper time; the brakeman was not on the flat car.’’
Thereafter defendant made a motion, as before stated, for judgment notwithstanding the verdict or for a new trial, which motion was denied, and judgment entered pursuant to the verdict.
Appellant has set forth 38 assignments of error relating to rulings in the admission and rejection of testimony, alleged errors in instructions to the jury and refusals to instruct, also to the ruling of the court in denying motions for nonsuit apd for judgment notwithstanding the verdict, or for a new trial; also, the order of the court in retaxing and allowing certain costs. Such assignments as have been argued in appellant’s brief will be noticed in the order presented. The assignments not argued will be deemed abandoned. Before noticing these assignments, a brief statement of the facts may be useful. On July 7, 1906, the plaintiff, with two of his daughters and other persons, was riding about the city of Towner in plaintiff’s automobile, and while in the act -of attempting to cross defendant’s railroad tracks at the intersection of said tracks with Main street, in said city, said vehicle was struck by defendant’s train, consisting of two cars and an engine, which were backing over such crossing from the east. Plaintiff’s daughter, aged about 18 years, was driving the automobile, and plaintiff was ridng on the rear seat. The accident happened about 8 o’clock in the evening. The testimony tended to show that in approaching the crossing from the south the automobile was being driven at a speed of five or'six miles per hour, and, when it reached a point within a few feet from the south track, the speed was changed to what is known as “low gear,” which is a speed of less than five miles per hour. It was shown that the noise from the automobile as it approached the railroad tracks was about equal in volume to the noise made by an ordinary lumber wagon under the same conditions, and that by changing from the high to the low gear the noise was increased. On account of the grade crossing, it was necessary to change the engine to low
As stated by appellant’s counsel, “the important question involved upon this appeal is whether or not plaintiff is barred from recovery because of contributory negligence.” The question of the defendant’s negligence as settled by the verdict of the jury is not controverted.
It is strenously insisted by appellant's counsel that, under the evidence, the driver of the automobile, as well as the plaintiff himself, was a matter of law guilty of negligence which bars his recovery. They contend that, on account of the obstructions to the view of the occupants of the automobile, it was incumbent upon plaintiff and his daughter to stop and listen for trains before attempting to make the crossing, and counsel cite and rely upon, as controlling in their favor, the case of West v. N. P. Ry. Co., 13 N. D. 221. 100 N. W. 254. The facts in that case are clearly differentiated from the facts in the case at bar. In that case it was held as a matter of law that plaintiff’s servant, who was the driver of the team which was killed, was guilty of contributory negligence in attempting to cross defendant’s tracks ahead of the train which he knew was coming, and must necessarily have been very close to the crossing at the time of the accident. In narrating the facts it was there said: “Frank Hayes, the driver of the team, * * * was familiar with .the crossing on Lamborn avenue and the conditions above described. * * * He saw a train approaching on the main track about 1miles north. He went into the house, stopped there not over a minute, came out .to the street where the team was standing, turned it around, and started it east towards the track. He drove the .team on a trot clear down to and onto the track. When he crossed the west side of Chicago avenue, he looked north but did not see the train. He knew when he could not see it that it was very close to the crossing; knew it had not yet crossed; knew it was approaching, but thought from where he had first seen the train he had time to get over the crossing, and so did not slacken the horses’ speed at all until they struck the track. As he was driving he looked and listened for the train. The wagon he was driving was an ordinary lumber wagon. * * * It is plain that Hayes was guilty of gross negligence, and that his negligence was the direct cause of the accident, and that the negligence of the appellant’s trainmen
Under these facts, was' it contributory negligence as a matter of law not to have stopped the automobile before making the crossing in order to look and listen for approaching trains ? Can it be said as a matter of law that a prudent person, under the like, circumstances, would have stopped the automobile for the purpose of looking or listening for the approach of trains? We think these questions must be answered in the negative. While it doubtless is true that on account of the obstructions to their view the occupants of this, automobile were in duty bound to exercise a higher degree of care for their safety than otherwise would have beep required had such obstructions not existed, still we believe that, under the weight of authority ■ and the better-considered cases, 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 track* A person is bound to use care commensurate with the known or reasonably apprehended danger; but it is only in exceptional cases that a trial court is justified in taking from the jury the question of the exercise of such 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 plight honestly differ, under all the facts as disclosed by the evidence, whether the exercise of such precaution was exacted of them. In the case of Coulter v. G. N. Ry. Co., 5 N. D., 568. 67 N. W. 1046, this court held that the question of plaintiff’s contributory negligence was for the jury, and not for the court, to decide. This was a crossing case, and the facts disclosed that plaintiff at about dusk in the evening drove a team and wagon over a public crossing, and was struck and injured by a passenger -train. The proof showed that a heavy snowstorm was raging at the tíme, which probably obstructed plaintiff’s view of the approaching train. Plaintiff testified' that he looked and listened
It would serve no useful purpose to review or cite the great number of authorities upon this question, and we shall content ourselves by a mpre reference to a few of such cases. N. Y. S. & W. R. Co. v. Moore, 105 Fed. 725, 45 C. C. A. 21; Dougherty v. C., M. & St. P. Ry. Co., 20 S. D. 46, 104 N. W. 672; Guggenheim v. Railway Co., 66 Mich. 150, 33 N. W. 161; Union Pac. R. R. Co. v. Ruzicka, 65 Neb. 621, 91 N. W. 543. 7 Am. & Eng. Enc. Law, pages 427-436, contains an accurate and clear statement of the rule of law here involved, with copious citations of authority. We quote therefrom in part as follows: “At highway crossings a railway company is bound to exercise ordinary care to avoid in
Our conclusion upon this phase of the case is, in brief, that under all the circumstances surrounding the plaintiff and the other occupants of the car, and in view of the testimony that they did not know of the switching that was going on in the defendant’s yards
Appellant next -complains of the trial court’s definition of “proximate cause,” and also of the meaning of “contributory negligence.’’ The jury was charged “that contributory negligence meant -the w-ant of the exercise of ordinary care which proximately causes the injury complained of.” They were also charged that “proximate cause, within the meaning of the definition of -the instruction of the court, is such a cause as' operates to produce particular consequences without the interference of any independent, unforseen cause, without which the injury would not have occurred; or, in other words, proximate cause is the true, probable and natural cause.” Appellant contends that there was prejudicial -error in these instructions. They argu-e that the jury was told, in effect, that unless plaintiff was guilty of negligence that proximately caused the injury he was entitled to recover. They say, “If plaintiff’s negligence and acts, combined with the negligence and acts of defendant, were responsible for the collision, still, under this charge, the jury must find for plaintiff.” In -other words, they contend that -the instructions in effect informed the jury that, in order to bar plaintiff’s recovery, the contributory negligence must have been the immediate and sole cause of the accident, and they cite and rely on Reitveld v. Wabash R. Co., 129 Iowa, 229, 105 N. W. 515, where, in speaking of a similar instruction, it was said: “This was erroneous in the form in which it was giv-en, in that it virtually announced the rule of comparative negligence which does not prevail in this state. Of course, the plaintiff’s negligence must be such as contributes proximately to the injury; but, if it does so in whole or in part, in any manner or in any degree, there can be no recovery on his behalf.” The case just quoted from no doubt states the correct rule regarding contributory negligence and the effect thereof upon plaintiff’s right of recovery, but the court w-as there dealing with the question of proximate -cause as -applied to contri
Appellant excepted to that portion of the charge to the jury as follows: “I charge you that the act or omission must contribute, in order to be contributory negligence, to the happening of the act or event causing the injury, and, if the act or omission merely in
Appellant predicates error upon the refusal -to give certain instructions requested by it. Without setting out such requests in this, opinion, it is sufficient to say that they were properly denied. The-first request had no support in the evidence, and each of them amounted, in effect, to a directed verdict upon the ground of contributory negligence, and, as before stated, this question was properly one for the jury to determine.
Numerous alleged errors are complained of .in the admission and' rejection of testimony, but the manner in which they are presented in-appellant’s brief does not require us to notice them. Rule 14 (91 N. W. 8) of this court provides that the brief shall contain “an assignment of errors, which need follow no stated form, but must in-a way as specific as the case will allow, point out -the errors objected to, and only such as he expects to rely on and ask this court to examine. * * * In the body of his brief appellant shall present his. reasons in support of each error assigned, with a concise statement of the principles of law applicable thereto with authorities supporting the same, treating each assignment relied upon separately, and such errors as are merely assigned and not supported in the body of' the brief -by reasons or authorities will be deemed to h-ave been abandoned.” In the preparation of their brief counsel for appellant has failed to comply with the foregoing rule, and hence we refrain from noticing the assignments upon which these alleged errors are-predicated.
This brings us' to appellant’s last assignment of error, which challenges the correctness of the order retaxing the costs in the court below. It is contended in brief that certain witness fees were improperly taxed as follows: Anton Strand, $8.10; T. H. Smith, $46.50; Frank Swickard, $24.50. As to the fees taxed for the witness Strand, we think the order complained of was correct, but, as to the fees of Smith and Swickard, the order was clearly erroneous, as $10 per day was taxed for these witnesses. We know of no law permitting the taxation of these witness fees in excess of $2 per day, and the judgment should therefore be modified by deducting therefrom the sum of $40, and, as thus modified, the judgment appealed from will be affirmed.