151 N.W. 36 | N.D. | 1915
Lead Opinion
From a judgment of $5,268 damages and costs; as a recovery for personal injuries to plaintiff through their negligence, defendants appeal. The usual averments of negligence are made with answer by denials and charges of contributory negligence. The alleged
The injury was received on May 4,1911, in a crossing accident, where the railway tracks cross Third street within the city of Bismarck, and as plaintiff crossed tracks in an automobile. The train demolished the auto and hurled plaintiff a considerable distance, rendering him unconscious, fracturing his skull, and seriously injuring him. Thé verdict is not challenged as excessive. Instead the question is only that of liability.
Plaintiff had resided near Bismarck for eleven years. He was engaged in dairying. He was familiar with the crossing and the situation thereabouts as to obstructions to view and any possible danger likely to be encountered. He had owned his International automobile about a month, and understood its operation. About 2:30 o’clock that afternoon he crossed the railway tracks on Fifth street south to Front street, the first street running each and west south of the tracks, where he turned westward, and after going about a block stopped to allow a passenger to alight, after which he immediately continued on about a block further to the intersection of Third street with Front street. Here he turned on Third street going north and up a gradual incline, running in low gear. It is 170 feet from where he turned onto Third street to where the first of the four tracks of the defendant company was crossed, and after crossing which he continued on 40 feet further, when he was struck by the engine of a special passenger train running at right angles to Third street and the direction he was traveling. The accident occurred about 2:37 ¶. m. A strong 29 mile per hour wind was blowing from the southeast, carrying any sound that might have been made by the train away instead of toward plaintiff. Approximately a dozen bystanders saw the occurrence and have testified. Defendant’s depot is situated a block and a half east of Third street crossing, the scene of the accident. The train was coming from the west. Estimates of its speed at Third street vary from 12 to 30 miles per hour. The Government Weather Bureau buildings, immediately ad
The train was on the main line and on the north one of four tracks at Third street crossing. These tracks were 14 feet apart from center to center. According to the testimony offered by plaintiff, upon the two soutkermost tracks were freight cars extending into and upon the highway, and to within about 6 feet from the roadway where teams travel over the crossing. These freight cars were of sufficient heighth and width to entirely block off the view to the west and northwest, and to plaintiff’s left as he came up the grade and until he crossed the second track, or approximately to that point, and within 24 feet of the south •rail of the main track, upon which the collision happened. Immediately to the south of the tracks was situated the Marshall Oil warehouse, extending out approximately to the street line. West of this warehouse were two oil tanks 25 or 30 feet high, 50 feet from the railway tracks, and to the west of these tanks was another building. In the neighborhood of the tanks was also a loading platform 3 or 4 feet high. While testimony for the defendants, with a photograph in evidence, offered by them, is to the effect that only the second track from the 'south was occupied by cars and with the cars to the west of the street ■line of the crossing, yet there is testimony tending to establish that within fifteen or twenty minutes of the time of the accident, and before the picture was taken, a switch engine had removed the freight ears from where they had been immediately previous to the accident; and the presence of the switch engine in the immediate vicinity, and that it had moved over at least tracks number one and two at the crossing before the photograph was taken, is admitted. There is a conflict in the evidence on whether the position of the cars was changed before the photograph was taken. What is said hereafter will be upon the assurnp
The following questions were asked him:
Q. Now, as you passed on the track, did you look east and west?
A. Yes, sir; I did.
Q. See any train coming from the east?
A. No.
Q. Were you listening at that time for the approach of trains from either way?
A. Certainly was; yes.
*488 Q. Did'you bear tbe sounds of bells or whistle or roar of a train upon tbe track?
A. No.
Q. You beard nothing whatever ?
A. Nothing at all until tbe last thing.
Q. As you passed tbe crossing upon tbe second track from the south and your auto pushed on toward tbe third track, did you see or bear a train ?
A. Not until it was just about ready to bit me.
Q. And then did you see it?
A. Just an instant; yes.
Q. Was it approaching quickly at that time?
A. Came onto me just so quick (indicating), — all at once.
Q. Did you have time to stop or reverse tbe automobile ?
A. No, sir; I should say not.
Q. After, you pushed by these cars on the second track from the south, as they were then, what, if anything, do you remember?
A. Nothing more than seeing the train right onto me all to once; just a flash and that is all I can remember.
He testifies that he could have stopped his car, running on low speed at 5 miles an hour, in a foot and a half quite easily, and with the ordinary foot brake and without using the emergency brake, and that his machine was in first class condition in every respect at that time; that when running uphill he looked to the east, but could not see to the west; that he has traveled over this crossing probably once a month for years and knew it was a bad crossing; and that his automobile was making considerable noise in low speed with the cutout open. The proof shows that unquestionably during the instant preceding the collision the engineer gave an alarm whistle, at the same time throwing on the emergency air brakes, which did not operate instantaneously, but when in perfect order take an instant to apply the braking power.
The engineer testifies:
Q. When was it that you first noticed any automobile crossing that crossing on that day?
A. Why,, just as I was approaching Third street crossing. Just*489 before I was approaching Third street crossing an automobile bobbed out from behind the cars, these ferry ears standing there, and bobbed right in front of me. Blowed the whistle and reached for the air at the same time to stop. Was looking straight ahead and that appeared to be bobbing right in front of me, probably in the neighborhood of 60 or 90 feet. Was running 12 miles an hour or such a matter. Ban three car lengths over the crossing before the train came to a complete stop.
The testimony offered by plaintiff was that the train was running at a much higher rate of speed and that the alarm whistle blew when it was within two or three hundred feet west of the crossing. Several eyewitnesses were watching the impending accident, expecting it, and one of them, witness Davies, an attorney, estimates the train’s speed at .30 miles an hour at the time it whistled, the instant before the collision. He places the length of the train at ten or twelve coaches, and says the train had gone about by, “possibly a coach or two left.” “It was a very long train. I should think there was ten or twelve coaches at least. Most of them went by” the crossing. Plaintiff was hurled 40 or 50 feet, and' witness was one of the first to his assistance. This witness had observed the train approaching for half a mile, and as the probability arose that there would be a collision was in position to carefully observe all the attendant circumstances from about a block distant north and in plain view of the crossing. He drives a motorcycle, and to the usual extent is familiar with the speed of vehicles. Witness timed the occurrence as 2:37 p. M. ' Just before hitting the automobile the engine whistled two long and one short, “the Morse letter d.” Witness “used to work in a railroad station as an operator helper.” Another eyewitness, Evans, saw the occurrence; saw Stone approach the crossing from the south from the time that he was coming up the grade at the side of the track at about 5 miles an hour, and saw the train approaching from the west; that plaintiff “seemed to be looking right straight ahead and-watching his machine while it was running. He was looking just like anybody would in driving a ear, and looking where he was going; had his head straight up and looking forwards.. The engineer didn’t blow the whistle until it was very close to him.” “Saw the engine strike the auto.” Another eyewitness, Attorney
There is much more similar and cumulative testimony. There was ample evidence from which it could have been found that the train was running at a high and dangerous rate of speed, 30 miles per hour, over the crossing. That the permitting of the freight cars to block off vision of the track and shorten about one half the usual distance within which, under ordinary conditions without the cars being where they were, plaintiff would have had to protect himself, constitutes, all taken together, an indisputable basis from which to conclude that the defendant company might have been found in the first instance guilty of negligence contributing to plaintiff’s injury. The question then arises whether the plaintiff was guilty of contributory negligence resulting in his injury, and if so, of course, he cannot recover. As motions for directed verdict were made at the close of plaintiff’s testimony and again at the close of the trial, and denied, and reviewed on motion for a new trial, the question is presented whether as a matter of law it should be said that plaintiff was guilty of such contributory negligence. Defendants contend that the same is established per se. The particular circumstances urged as sufficient to establish such negligence per se on plaintiff’s part are that between 23 and 21 feet were traveled
Error is assigned in the reception of testimony of witness Davies wherein he estimated the speed of the train at 30 miles per hour at the time of the collision, over objection that he was not shown to have been qualified to so testify, and that his estimate is inadmissible as not based upon sufficient facts observed. In addition to what has already-been stated in the recital of facts, it appears that this witness was observing the train while it was traveling at least half a mile, though part of the time his vision was obscured by obstructions, but the smoke of the train could be seen and the engine itself was in his plain view for three or four car lengths immediately before the collision. Of
Error is assigned on the admission in evidence of a section of the revised ordinances of Bismarck, on the ground that no sufficient foundation was laid, in that the record does not show the existence or passage of the ordinance, and that there is no competent evidence showing that it is still in force. Erom the cases cited, it appears that counsel would contend that it was necessary to show the passage of the ordinance by yea and nay vote taken and recorded. The validity of the ordinance is not in issue, and the statute, § 3596, providing that “such book (of ordinances) or a certified copy of the ordinances so recorded shall be received as evidence in all courts and places without further proof,” authorizes reception in evidence of particular ordinances so recorded. It appears that the city auditor, custodian of the city ordinances, was sworn, produced the book of ordinances, one of which was the particular ordinance in question, and testified that the same had not been repealed or amended since its passage. Thereupon the particular section was received in evidence over the objection that no foundation was laid. The objection is without merit. Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242-247; 17 Cyc. 298.
The court excluded a photograph of the crossing upon defendants’ offer. It was taken to show a view looking “in the direction that the engineer would look coming towards the east,” but it was taken from a position 10 feet north of the main line, and but 25 or 30 feet west of the crossing, and from but a man’s height above the ground. But in the offer counsel states that “it is not offered especially to prove or tending to prove what the engineer riding on the train could see.” It was excluded, on objection, and when reoffered as showing the engineer’s view of the situation, it was • again excluded. Admittedly the exhibit was so taken as not to include the cars on side track, and to give but a partial, and perhaps misleading, view of the situation, and it could not have illustrated the engineer’s view, it not
Rehearing
On Petition for Rehearing.
Defendants petition for rehearing and state that we have overlooked an assignment of error taken in their brief in the following • language: “The undisputed testimony shows that plaintiff was guilty of contributory negligence in that knowing the crossing he travelled up to it at a speed of five miles an hour or more and for a distance of from two hundred seventy-five to five hundred feet with both his sense of sight and sound obstructed and interfered with.” This was thought to have been sufficiently discussed wherein the whole general situation was treated. As this necessarily included the approach to the danger area, which began at the point of emergence from behind the box cars obstructing vision to the northwest and twenty-three to twenty-seven feet from the main line track, it was inferentially covered in the main opinion. As counsel is insistent, however, it may be stated that it is difficult to conceive how as a matter of law plaintiff could be held to be guilty of contributory negligence at this point of entrance into the danger zone when he was then traveling but five or six miles per hour and in control of his machine and able to stop within a foot and a half from where the brakes might be applied. This is the testimony and the jury had a right to believe it. On this assumption plaintiff could have stopped as quickly as a pedestrian if emerging from behind the box car. It is evidence that whatever basis there is upon which to charge plaintiff with contributory negligence that charge must be placed upon the failure of plaintiff to observe the oncoming train or hear it during his entire approach and particularly from where the scope of his vision would have permitted and not in his advance merely to the edge of what has been termed the danger zone.
Perusal of Christopherson v. Minneapolis, St. P. & S. Ste. M. R. Co. shows an entirely different situation to this one.. That crossing was an extremely dangerous one, almost a veritable man trap, and known to be such, and necessarily so by the contour of the surrounding country. Likewise, in Gast v. Northern P. R. Co. the facts disclose that the driver of a four horse team, one team ahead of the other, drove over a crossing between cars obscuring his vision on either side, under circumstances in which the lead team must have been very close to or almost upon the main line track at tire instant when plaintiff, the
It may well be said, as intimated in the main opinion, that the facts in this case present a close issue of law on whether plaintiff should be charged with contributory negligence as a matter of law. Doubt must be resolved in favor of the plaintiff and in favor of the findings of the jury by their verdict. It may be added that this case marks about the limit at which negligence should not be imputed to a plaintiff under circumstances. Another assignment on admission of testimony as to train’s speed not particularly ruled upon and re-urged on petition for rehearing, we held not well taken. The petition is denied.