100 N.W. 254 | N.D. | 1904
Defendant appeals from an order denying its motion for judgment notwithstanding the verdict, or for a new trial. The plaintiff recovered the value of a team killed at a railroad crossing. The point for consideration is whether or not, under the evidence, plaintiff’s driver was guilty of negligence proximately causing the injury, or of contributory negligence as a matter of law.
From the west side of Chicago avenue a train could be seen if north of the water tank.
Frank Haas, the driver of this team, lived in New Rockford, and had been employed as a driver upon a dray for several months prior to the accident. He was familiar with the crossing on Lamborn avenue and the conditions above described. On the evening of the accident, October 8, 1902, between 6 and 6 :30 o’clock p. m., but before dark; Haas was in front of plaintiff’s house, one block west of the railroad tracks on Lamborn avenue. He saw a train approaching on the main track, about V/2 miles north. He went into the house, stopped there not over a minute, came out to the street, where his team was' standing, turned it around, and started east toward the track. He drove the team on a trot clear down and onto the track. When he crossed the west side of Chicago avenue he looked north, but did not see the train. If it had been north of the water tank he could have seen it. He knew when he could not see it that it was very close to the crossing; knew it had not passed the crossing; 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 made some noise. Haas testified: “I could have heard the train if I had not been
The negligence of defendant is alleged to have consisted in its running the train into the town and across this street at a high rate of speed, without sounding the whistle or ringing the bell. There is a conflict in the evidence both as to the speed of the train in approaching the crossing and as to the warnings given. There was evidence in the case that the train approached the crossing at a speed of 30 miles an hour, and that the whistle was not sounded or bell rung within 80 rods of the crossing. For the purposes of this decision, the evidence will be considered in its most favorable aspect toward plaintiff. Haas testified that if the trainmen had rung the bell or blown the whistle within 80 rods of the crossing, or if the bell had been rung continuously within a block of the crossing, or if the train had been going at the rate of speed that trains usually run through the town,he could have avoided the accident; that he was depending upon the sound of the whistle or the bell to warn him of its approach. It is plain that Haas 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 in the particulars mentioned could furnish no excuse or justification for the reckless act of Haas in attempting to cross in front of the approaching train. From the time Haas crossed the Chicago avenue until he reached the track he knew all view of the train would be obtsructed, and that he could not guage its exact distance through the sense of sight, but must rely upon the sense of hearing alone. When 127 feet from tire crossing, with his mind and attention fixed upon the fact that the train was approaching; with ocular proof that it had traveled from a point 1J-2 miles north to a point less than 1,380 feet from the crossing since he had first seen it, less than 3 minutes before, and if the rate of speed was maintained it would be on the street ahead of him in less than 1 minute; with knowledge that he could not see the train again until it emerged from behind the buildings and appeared at the crossing toward which both the train and his team were hurrying ; that a stop of a minute at most would let it pass; with full knowledge of tire danger of attempting to drive across in front of a train approaching at such a rapid speed, and dangerously near— he took no precautions for his safety, but hastened oh as if in a race to see which could first pass the point of intersection.
When, as in the case at bar, the person in charge of a team had actual knowledge of the train’s approach in ample time to' have permitted the train to pass, and knew, without sound of bell or whistle, all that he could have known had the alarm been sounded, it cannot be said that the failure to ring the bell or sound the whistle was the cause of the accident. Burnett v. Ry. Co. (N. J. Sup.) 39 Atl. 663; Chicago, etc., Ry. Co. v. Bell, 70 Ill. 102; Pakalinsky v. Ry. Co., 82 N. Y. 424; Chicago, etc., Ry. Co. v. Houston, 95 U. S. 702, 24 L. Ed. 542; Blake v. Receiver, 30 N. J. Eq. 243; Helm v. Ry. Co. (Ky.) 33 S. W. 396; Bertelson v. Ry. Co., 5 Dak. 313, 40 N. W. 531; State v. Ry. Co., 76 Me. 357, 49 Am. Rep. 622; McDonald v. Ry. Co. (Tex. Sup.) 22 S. W. 942, 40 Am. St. Rep. 803; McManamee v. Ry. Co. (Mo.) 37 S. W. 119; Fletcher v. Ry. Co., 64 Mo. 484. In Burnett v. Ry. Co. (N. J. Sup.) 39 Atl. 663, it is said: “Irrespective of the question of negligence in attempting
It is urged that respondent had a right to depend upon the trainmen performing their statutory duty, and that, if the bell had rung or whistle sounded continuously as the train approached the crossing, he could have measured its exact location by the sound, and so stopped before getting onto the track; that it was properly a question for the jury whether he was in the exercise of ordinary care under the circumstances. He had actual knowledge, when he crossed Chicago avenue, that the train was within less than 80 rods of the crossing, and that it had not sounded the whistle or bell,
If the failure of the engineer to- continuously ring the bell was negligence as to Haas, and in any way contributed to the accident, the case falls within the rule: “Where both parties are guilty of negligence, and the injury is due to the negligence of both, no recovery can be had.” Nashua Iron & Steel Co. v. Ry. Co., 62 N. H. 159; Gahagan v. Ry. Co. (N. H.) 50 Atl. 146, 55 L. R. A. 434; Holland v. Ry. Co. (C. C.) 18 Fed. 243; Fletcher v. Ry. Co., 64 Mo. 484; Gorton v. Ry. Co., 45 N. Y. 662; Lake Shore, etc., Ry. Co., v. Miller, 25 Mich. 274. In Haas v. Ry. Co., 47 Mich. 407, 11 N. W. 219; it was said: “To move forward briskly, as the decedent did, from a point whence an approaching train would not be seen, at a time whén -it was known- by him that a train was due, and not to pause until the train was encountered, was so far from being ordinary prudence that it approached more nearly to absolute recklessness.” In Schaefert v. Ry. Co., 62 Iowa, 624, 17 N. W. 893, similar to this case upon the facts, the team was trotted onto the track where the accident occurred. It was there
Defendant moved the court for judgment notwithstanding the verdict, or for a new trial. The particular ground upon which it demanded a new trial was the insufficiency of the evidence to sustain the verdict. The motion for judgment notwithstanding the verdict was properly overruled. At the close of the testimony defendant’s counsel did not move for a directed verdict. Ward v. McQueen (just decided) 100 N. W. 253. Such motion is a necessary preliminary to a motion for judgment notwithstanding the verdict. Chapter 63, p. 74, Laws 1901; Johns v. Ruff, 12 N. D. 74, 95 N. W. 440. But the motion for new trial was improperly overruled. The verdict is contrary to and is not supported by the evidence.
The order appealed from, in so far as it denied defendant’s motion for a new trial, is reversed, and a new trial ordered.