140 N.W. 680 | N.D. | 1913
Lead Opinion
(after stating the facts as above). We think that there is no merit in the appellant’s first proposition, that the judgment should be reversed because certain of the questions propounded to the jury and inserted in the special verdict called for conclusions of law and conclusions of fact, and not ultimate, physical facts. These questions and answers were as follows: “(4) Was the motorman guilty of any
By all of these questions the jury was, in different ways, directed to find whether appellant was guilty of any want of ordinary care, and,
It is to be remembered, indeed, that special verdicts are to be fairly and reasonably construed, and to be used and treated, not as pitfalls for the litigants, but as aids to the administration of justice. Clementson, Special Verdicts, p. 262; Hoppe v. Chicago, M. & St. P. R. Co. 61 Wis. 357, 21 N. W. 227; Bartlett v. Beardmore, 77 Wis. 356, 46 N. W. 494; Elizabethton Shoe Co. v. Hughes, 122 N. C. 296, 29 S. E. 339; Zimmer v. Fox River Valley Electric R. Co. 118 Wis. 614, 95 N. W. 957. It is also to be borne in mind that only those facts which are in controversy need be submitted. Schrubbe v. Connell, 69 Wis. 476, 34 N. W. 503; Heddles v. Chicago & N. W. R. Co. 74 Wis. 239, 42 N. W. 237; Burton v. Boyd, 7 Kan. 28; McGonigle v. Gordon, 11 Kan. 167; Ward v. Busack, 46 Wis. 407, 1 N. W. 107.
The second point of appellant, and to which he has devoted the greater portions of his brief and argument, is that the plaintiff was guilty of such contributory negligence as precludes a recovery as a matter of law. All of defendant’s argument, however, is based upon the proposition that “respondent turned west on Front street at the Commercial Bank crossing, after looking to the rear about 150 feet to the Northern Pacific tracks, and drove at least 480 feet west to the middle of the block, and without again looking to the rear, turned suddenly across the track immediately in front of the car, in the middle of the block, and so close that the car could not possibly have been stopped, and was struck and injured.” He argues, and produces authorities upon the proposition, that when one approaches a street railway track for the purpose of crossing the same, it is his diity to both look and listen, and asserts that the evidence shows that in the case at bar, though the plaintiff may have listened, he totally failed
Tbe judgment of tbe District Court is affirmed.
See decision on rehearing p. 4S0.
Rehearing
On Petition for Rebearing.
Counsel for appellant takes exception to tbe expressions used by tbe court in tbe original opinion, “and also showed tbat tbe crossing of tbe tracks was the proximate or operative cause of tbe injury.” Tbe language used should probably have been: “And also showed tbat tbe crossing of tbe track was a proximate or operative cause of tbe injury.” In other words, the word “tbe” should be stricken out, and tbe word “a” should be inserted in lieu thereof. This we have done in tbe original opinion. As so changed, we believe, tbe statement to be correct.
He also calls attention to tbe cases of Fritz v. Detroit Citizens’ Street R. Co. 105 Mich. 50, 62 N. W. 1007; Boertb v. West Side R. Co. 87 Wis. 288, 58 N. W. 376; McCormick v. Ottumwa R. & Light Co. 146 Iowa, 119, 124 N. W. 889; Tognazzi v. Milford & U. Street R. Co. 201 Mass. 7, 21 L.R.A.(N.S.) 309, 86 N. E. 799; State use of Carey v. Cumberland & W. Electric R. Co. 106 Md. 529, 16 L.R.A.(N.S.) 297, 68 Atl. 197; Winch v. Third Ave. R. Co. 12 Misc. 403, 33 N. Y. Supp. 615, and argues tbat they are cases like the one at bar where tbe plaintiff was, during tbe whole of tbe time in which be was driving upon tbe street where injured, within tbe track of tbe car or zone of danger, and asserts tbat they are so directly in point and conclusive tbat they should not be ignored by this court. He states, indeed, that bis argument has been based squarely upon tbe assumption of tbe truth of every fact which tbe original opinion stated some of tbe evidence supported, but maintains tbat even.then, under tbe law and under tbe cases cited by him, tbe plaintiff was guilty of contributory negligence and cannot recover. We do not, however, so understand tbe cases, and an analysis will show that they are really not in point. It is for this reason tbat they were passed over in tbe principal opinion. In tbe case of Fritz v. Detroit Citizens’ Street R. Co. 105 Mich. 50, 62 N. W. 1007, for instance, although tbe facts in tbe main are similar, there is one material difference, and
It will be readily seen from tbe above quotation tbat tbe case referred to is authority for, ratber tban against tbe plaintiff in tbe suit at bar. It, in fact, reaffirms tbe so-called doctrine of tbe last clear cbance, wbicb bas been established in this jurisdiction by the case of Acton v. Fargo & M. Street R. Co. 20 N. D. 434, 129 N. W. 225.
In tbe Michigan case, indeed, just cited, tbe evidence showed tbat tbe turning across tbe track was a contributing and proximate cause of tbe injury, and tbat unless the plaintiff bad turned across tbe track, no accident would bave occurred. In tbe case at bar, however, there is evidence wbicb tends to show tbat tbe accident would bave happened whether tbe plaintiff bad turned across tbe track or not.
Tbe case of Boerth v. West Side R. Co. 81 Wis. 288, 58 N. W. 376, is also not in point. In that case, to use tbe language of the opinion, “tbe evidence on tbe part of tbe defendant is to tbe effect that tbe wagon in question was at tbe time being driven on tbe southerly side of tbe avenue from Ninth street to Eighth street, by tbe side of tbe.car or a little ahead of it; tbat upon reaching Eighth street tbe plaintiff’s team suddenly turned north on Eighth street, immediately in front of tbe car, and bad nearly crossed tbe railroad track when tbe wagon was struck as mentioned. Tbe evidence seems to be overwhelming tbat tbe bell was repeatedly sounded while tbe car was going from Ninth to Eighth street.” “If such were tbe facts,” tbe court said, “then there was no negligence on the part of tbe defendant, but there was gross negligence and carelessness on tbe part of thé plaintiff.” It will be seen, indeed, on examining tbe opinion, tbat tbe accident would not bave happened if it bad not been for tbe turning across tbe track. Tbe eourt also took tbe position tbat tbe bell and gong were sounded, while in tbe case at bar there is evidence to tbe contrary. We might also add tbat tbe doctrine of tbe last clear cbance, as promulgated in North Dakota in tbe case of Acton v. Fargo & N. Street R. Co. supra, never seems to bave been recognized in Wisconsin. See Owen v. Portage Teleph. Co. 126 Wis. 412, 105 N. W. 924, 19 Am. Neg. Rep. 612; Watermelen v. Fox River Electric R. & P. Co. 110 Wis. 153, 85 N. W. 663; Johnson v. Superior Rapid Transit Co. 91 Wis. 233, 64 N. W. 153.
The same is true of the case of Tognazzi v. Milford & U. Street E. Co. 201 Mass. 7, 21 L.R.A.(N.S.) 309, 86 N. E. 799, also cited by counsel for appellant, although in this case there is evidence that just prior to the accident the plaintiff was in the zone of danger. The court said: “The plaintiff testified that as he went from North street into East Main street, across the railroad track, he stooped over or leaned out of his wagon and looked both sides to see if a car was coming, but did not see any. . . . After he had crossed the track into East Main street, he drove along nearly parallel to the track, at first in about the center of the street or 10 feet from the track, and the last part of the way about 2 or 3 feet from the track. . . . He drove along until he got opposite the driveway that led into his premises, when he turned sharply at right angles and crossed the track to go into the driveway. The car struck the hind wheel of his wagon before he got across the track. . . . Erom North street to the driveway was 300 feet. And after looking as he crossed the track at North street, the plaintiff did nothing as he drove along East Main street to see if a car was coming, or as he turned to go into his driveway or as he drove across the track. He testified that he did not hear any gong or bell or car, but there is no evidence that he listened. To say that he did not hear is as consistent with his not listening as with his listening and not hearing. The uncontroverted evidence shows that when he turned to cross the track and go into the driveway the
Nor can we see the application of the case of State use of Carey v. Cumberland & W. Electric H. Co. 106 Md. 529, 16 L.R.A.(N.S.) 297, 68 Atl. 197. In that case the car by which the defendant was struck was an electric freight car, and not the ordinary street car. There was no evidence that the wagon itself was struck, or that the plaintiff, who was injured, would have been struck at all if he had remained in the wagon. “He was struck by the car while in the act of stepping down backward from the hub of the wagon wheel toward,, if not upon, a railroad track but 2 feet distant from the wheel, without; taking the slightest precaution to ascertain whether a car was approaching. He could have seen the car in time to save himself if he had simply turned around and looked for it.” The court further-said: “Counsel for appellant contended with much ability at the hearing of the appeal, that the case came within the operation of the doctrine of the last clear chance, upon the theory that the position of Carey while standing upon the hub was one of peril in which the motorman of the approaching car could, by the exercise of proper diligence, have seen him in time to have saved him from its conse
The case of Winch v. Third Ave. R. Co. is also a case where there is no evidence which shows or tends to show that the plaintiff was at any time in a position of danger until he deliberately turned upon and across the track. It is true that he drove for some 50 feet along the street and in front of the car, but there is no evidence that at any such time he was in the track of the said car.
It seems to us, indeed, that the case at bar comes clearly within the rule laid down in Acton v. Fargo & M. Street R. Co. 20 N. D. 434, 129 N. W. 225; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 217, 112 N. W. 972, and Bostwick v. Minneapolis & P. R. Co. 2 N. D. 440, 51 N. W. 781. It is also quite clear to us that in states such as North Dakota, where contributory negligence is an affirmative defense to be alleged and proved by the defendant, the doctrine of discovered peril or of the last clear chance can be urged under a general allegation of negligence in the complaint, and that the trial court did not err in so ruling. Hanlon v. Missouri P. R. Co. 104 Mo. 381, 16 S. W. 235; Powers v. Des Moines City R. Co. — Iowa, —, 115 N. W. 494;. 6 Thomp. Neg. § 7466.
The petition for a rehearing is denied.