167 N.W. 489 | N.D. | 1917
Lead Opinion
This is an action for damages which are alleged to have been sustained by reason of a team taking fright at some kegs of nails or spikes and running away.
The accident happened in the town of Medora and at or near a crossing of the defendant and on a road which passed by the depot. The road had never been legally laid out, but was simply a winding trail along the river which had been in use for many years. The crossing over the river was put in in September, 1884. Just before reaching the railway crossing, as one drives north toward the town of Medora on this road, there is a wooden bridge which is about 3 feet lower than the grade of the tracks. The kegs in question were about 5 feet north of the tracks and on ground level with them, and from 10 to 30 feet of the traveled highway. One approaching the tracks from the south would have no difficulty in seeing them.
There had been a wreck in the yards at Medora on August 24th, and these spike kegs were unloaded on the 25th to be used in repairing the track. The accident happened on the 27th day of August. The kogs were just west of the depot. Medora is a small town having a population of about 150 people, and there are no depot accommodations for freight of this kind. It, in fact, never appears to have boon the custom of the railroad company to put dead freight of this kind into the depot.
If the defendant had been an ordinary landowner it is very clear that there would have been no liability on its part, as not only are the liabilities of one who consents to a highway by prescription or by license merely confined to the track itself (see State v. Auchard, 22 Mont. 11, 55 Pac. 361; Davis v. Bonaparte, 137 Iowa, 196, 111 N. W. 896; Bayard v. Standard Oil Co. 38 Ore. 138, 63 Pac. 611; O’Donnell v. Chicago, M. & St. P. R. Co. 69 Iowa, 102, 28 N. W. 164), but, to quote from the language of the supreme court of Pennsylvania, “if a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow or a wagon standing on his own premises by the side of the highway, except at the risk of having his whole estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed.” See Piollet v. Simmers, 106 Pa. 95, 51 Am. Rep. 196.
To again quote: “The principle is freely conceded that every person must so use his own property as not to injure others, and if he in a reckless, wanton, and wilfully negligent manner makes such use of his property as to injure others, he may be held liable in damages. It is equally true, however, that an owner of real estate has a right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use in order to relieve him fom liability for damages on account of injuries incidentally resulting to a traveler on the highway.” Davis v. Pennsylvania R. Co. 218 Pa. 163, 12 L.R.A.(N.S.) 1155, 67 Atl. 777.
Although it is no doubt true that, if a railway company allows a crossing it must use ordinary care to keep such crossing in a safe condition, no different rule applies in the case of such a company than in that of an ordinary person.
The question is after all one of negligence; and although this question of negligence is ordinarily one for the jury, and in many cases of obstructions or unusual objects at a crossing, the question has been held to be a mixed question of law and of fact, it is almost everywhere held
It must be remembered that in the case at bar the kegs were not placed in the highway but from 10 to 30 feet therefrom. They were placed upon the defendant’s own property; and though perhaps it was not absolutely necessary to the work for which they had been obtained, namely, the repair of the tracks after a wreck, that they should have been put in that particular place, they were being used in that work, were placed where they were for that purpose, and were much in the same situation as the sacks of grain which the farmers everywhere in North Dakota scatter in their fields and along their highways during seeding operations, and as the machinery which they leave in the fields, and the sacks, tools, and utensils which they leave around their dwellings.
The question is, Would a reasonably cautious and intelligent man have anticipated that any danger to the traveling public would have arisen from such an act ?
We think not, and that there is no room for reasonable men to differ on the proposition. Such being the case, the point is one for the court, and not for the jury, to pass upon.
We must of course take judicial notice of the nature and appearance of nail kegs. There is nothing in them more dangerous in appearance or more calculated to inspire fright than in a stump of a tree, a stone, a government mail box, or a sack of grain.
The testimony also shows that there was a bridge on the road to the south, the north end of which was 27 feet from the center and only 2.7 of an inch lower than the crossing. It is therefore clear that the plaintiff, when sitting in the seat of the wagon or buckboard, was in
We are of the opinion that no negligence was shown on the part of the railway company. The judgment of the District Court is therefore reversed, and the cause ig remanded with directions to dismiss the complaint.
Concurrence Opinion
(specially concurring). This is an appeal from a verdict and a judgment for $2,000 against the railway company. The charge is that at the crossing of a highway in IVIedora, and within a few feet of the highway, defendant by negligence left four kegs of spikes which frightened and caused a team of horses to run away with the plaintiff, to her damage $2,000. At the time of the runaway the plaintiff and her three small children were in a buckboard or one-seated buggy, and the team was driven by a little boy eleven years old weighing 59 pounds. The runaway occurred as the team was on the descent from a railway crossing, about 7 or 8 feet above the level of the country. One of the children was a baby, and when the team commenced to run, the mother took the baby on her lap and took hold of the lines with the boy. The boy was thrown out and took one line with him. The mother grabbed for the line, but could not reach it, so she was left in the buggy with the baby and another child and only one line to guide the team.
The case presents only two questions: (1) Was the company guilty of negligence in leaving the kegs near the highway, and did such kegs cause the team to run away ? (2) Was the plaintiff guilty of contributory negligence in permitting so young and small a child to drive the .team over such a crossing with his mother and the small children ?
Of course the findings of the jury are in favor of the plaintiff, and on doubtful questions of fact on which there is conflicting evidence the courts commonly put the responsibility onto the jury and in that way wash their own hands of any guilt. Still, in reviewing a case of this
A little boy of eleven years old, weighing fifty-nine pounds, is not fit to drive a team and buckboafd or one-seated buggy with a woman and two other small children. A woman with a baby on her lap is not fit to assist a little boy in driving a team over a rather dangerous place. In time of danger a team of horses should always be in control of a man, especially when there is on board a woman with small children. The chances are a thousand to one — and it may be easily demonstrated— that any competent man can safely drive a thousand teams over the crossing in question regardless of nail kegs, however numerous. When a team starts to run away a man can haul them in, saw their mouths, bring them to their senses with a good lash of the whip, and he can ride as fast as the team can run, and keep them on the road. But that may not be true in case of a man hampered and crowded with a lot of small children. It was sheer negligence and want of care and prudence for the mother to crowd herself and three small children onto the buckboard or one-seated buggy. It was made for only two persons. In driving a team a little boy is at a great disadvantage. He has not sufficient strength or the presence of mind. The horses know when they have a boy driving them and they have no confidence in him, but if the boy had been alone he would not have been crowded off his seat, and he could have remained in the buggy.
Mrs. Olmstead saw the accident and immediately heard the boy tell of it. He said: “Well, I don’t know, unless the whiffletree got into the wheels and when it got loose it bumped the horses on the heels and they jumped and turned so short I fell out.” In going down a hill with such a load, the horses must hold back, and there is danger of the whiffletree coming in contact with the horses’ legs; that is a frequent cause of runaway.
The conclusion is that the railway company was not guilty of negligence in placing the nail kegs as they did, and defendant was guilty of negligence in driving with her three small children as she did, and her own negligence was the proximate and real cause of the accident.
Rehearing
In the petition for a rehearing in this case, exception is taken to several of the statements and the holdings of the main opinion, among them being one to the effect that “the kegs in question were about 5 feet north of the tracks, and on ground level with the tracks, and from 10 to 30 feet of the traveled highway. When approaching the tracks from the south one would have no difficulty in seeing them.” The testimony also shows that there was a bridge on the road to the south, the north end of which was 27 feet from the center and only 2.7 feet lower than the crossing. It is therefore evident that the plaintiff when seated in the seat of the wagon or buckboard was in clear view of the kegs, as, in fact, most any person of ordinary height could have been even though walking upon the ground, and, although the kegs might have been hidden while passing through the intervening portion of the 27 feet, their existence must have been known.
Plaintiff and appellant claims tbit the evidence is that “from a point 97.3 feet south of the center of the crossing to the top of the south rail is an elevation of 7.3 feet, that from a point 9 feet north of the north rail and 10 feet east to the east thereof, which is approximately where the jury found that the kegs were placed, to the top of the north rail, is an elevation of 19.5 inches. The kegs, it is claimed, were about 2 feet high. It is claimed that it can be at once seen that the kegs were almost entirely concealed by the north rail when one stood on the crossing. Approaching from the south a team went up a grade of 7.3 feet in a distance of 93 feet to get on the crossing.” Such being the case, plaintiff says that he is at a loss to know how the plaintiff could see the kegs before she got on the crossing.
All this may be true. Counsel, however, takes his data from the south end, and not the north end, of the bridge, and from a distance of 97.3 feet from the crossing, whereas the undisputed evidence also shows that the north end of the bridge and the part thereof which was nearest to the tracks was only 2.7 feet lower than the crossing. It is clear, therefore, that the kegs could have been seen from this point even if they could not have been seen from the other end of the bridge.
All of this, however, we hold to be unimportant. The question is whether the railroad company was negligent, — whether it was negligence
In addition, and in response to the petition for a rehearing, we may-say that it is immaterial whether the kegs were 10 feet or 6 feet from the tracks; also whether the company was in the habit of keeping- such freight in its depot or had the facilities for so doing. We do not, in short, hold that a nail keg is an article which is easily calculated to frighten horses. We also note the contention that, although a highway by prescription is not proved, there is evidence of a crossing which had been sanctioned and allowed by a railroad company, and we are also aware of the general rule of law that, where a railroad company allows a crossing, it is required to use proper precautions for the safety thereof. We do not, however, find any lack of those reasonable precautions. We believe the law to he that “in no such case can a plaintiff recover unless the object of fright presents an appearance that would he likely to frighten ordinary horses, nor unless the appearance of the-object is such that it should reasonably he expected that it might have that effect.” See Nichols v. Athens, 66 Me. 402; Card v. Ellsworth, 65 Me. 547, 20 Am. Rep. 722. We cannot hold that a nail keg is such an object.
The petition for a rehearing is denied.
