221 N.W. 42 | N.D. | 1928
This action was brought to recover damages for personal injuries.
The facts, for the purposes of this appeal, may be stated as follows: The plaintiff was a farmer living north of the city of Fessenden. He had contracted with the school district to transport certain children to school. For this purpose he used an inclosed conveyance. On the morning of the 18th of January, 1924, he took the children to the schoolhouse and then drove to the business portion of Fessenden on some business of his own. The defendant is a common carrier whose line of railroad runs in an easterly and westerly direction through the city of Fessenden, crossing the streets at right angles. It operates numerous passenger and freight trains over this road. On the 18th of January one of its through freight trains, No. 89, running from east to west, was several hours late and approached the city at a speed of about 35 miles per hour. The day was cold and windy. Some snow *281 was blowing and at times it was not possible to see more than a few hundred feet. The plaintiff finished his business and started home at about eleven o'clock. It was necessary for him to cross the defendant's tracks. He drove north along the main street and as he crossed the main line track he was struck by No. 89 and severely injured. The crossing is on level ground and from it under normal conditions it is possible to see a long distance both east and west up and down the railroad track. There are three tracks at this point: the main line track on the north, the passing track, and then, on the south, the industry track. The distance from the center of the main line track to the center of the industry track is 48 feet. As the plaintiff approached this crossing on the day of the accident, one of the defendant's box cars was on the industry track on a line with the sidewalk on the east side of the street and obstructed the view so that it was not possible to look east along the track until after passing this car. Box cars were similarly placed on the west side of the street. The bus in which the plaintiff was driving was a horse-drawn vehicle with wheels. It was built of ceiling, was about 10 or 11 feet long, 4 feet wide and 5 feet high, and was wholly inclosed. There was a pane of glass in front and one, 9 x 11 inches, on each side near the front. The lines passed through small openings in the front of the bus. Plaintiff drove up the street at a slow trot. As he approached the crossing he slowed down and continued across at a walk. He testified that after he passed the industry track he looked east and saw no train and then looked west. Thereafter and before he saw the train he was struck by the engine of No. 89. When he looked east he could see to the east end of the depot, a little over 227 feet. He could not see further on account of the snow in the air. He heard no whistle or bell or any sound of warning.
Plaintiff brought this action to recover damages suffered by him through the collision. He alleged negligence on the part of the defendant in operating its train through the city of Fessenden at an excessive rate of speed; in failing to ring the bell or sound the whistle as it approached the crossing; and in placing its cars on the industry track near the crossing so as to obstruct the view of anyone who might approach the track at that point. The defendant in its answer denied any negligence in the respects charged and pleaded contributory negligence *282 on the part of the plaintiff. The case came to trial before a jury. Plaintiff had a verdict. Thereafter the proper foundation having been laid the defendant moved for judgment notwithstanding the verdict on the ground that the evidence was insufficient to sustain the same. This motion was denied, judgment was entered on the verdict and the defendant perfected the instant appeal from the order denying its motion.
The only questions raised on this appeal are as to the sufficiency of the evidence to sustain the verdict. Does the evidence warrant a finding that the defendant was negligent? Does it warrant a finding that the plaintiff was negligent? Ordinarily the question of negligence is a question of fact to be determined by the jury. It becomes a question of law only when reasonable men can draw but one conclusion from the evidence. Martin v. Parkins,
The defendant is charged with negligence in three respects. If the jury's finding of negligence can be sustained as to any one of these then the verdict must stand, unless the defendant has sustained the burden it assumed by its plea of contributory negligence and has established such negligence on the part of the plaintiff. With a view to determining the issues thus made it becomes necessary to further examine the evidence. That determination must rest not on what we as individuals might find were we on the jury, but on whether it is possible to say that no reasonable man could draw the inferences from the evidence that this jury did in order to reach its verdict.
The plaintiff in his complaint predicated negligence on the alleged excessive rate of speed of the train which ran him down. The crossing where the accident occurred was on the main street of the little city of Fessenden. The day was cold and stormy. The air was filled with flying snow so that it was not possible to see more than a short distance. Under these conditions the defendant ran its train over the crossing at a speed of 35 miles per hour. While, of course, practical necessity *283 demands that railroads shall have the right of way over crossings and does not require that trains shall run at snail's pace in every village or city through which they pass, nevertheless they must be operated with regard to the rights of the public generally. Though necessity gives railroads the right of way over crossings, yet the public have in other respects equal rights there. Railroads cannot, because they have the right of way, disregard reasonable precautions for the safety of the public. They cannot say that the public shall cross their tracks at its peril. The same rule that requires the public to exercise greater care at dangerous crossings requires that railroads do likewise. So it seems to us that under all the circumstances as shown, the question as to whether the operation of the defendant's train on the day of the accident was negligent or otherwise was for the jury to answer. We hold then that on this account the finding of the jury that the defendant was negligent must be sustained. So holding it is not necessary to determine whether the defendant was negligent in the other respects charged.
There remains then the question as to whether the plaintiff himself was guilty of negligence in approaching the crossing and in attempting to pass over the same in the manner and under the circumstances disclosed. Of course a railroad crossing is a dangerous place. The fact that it is a crossing of itself is notice to every reasonably prudent individual of the danger incident to it. Some crossings are more dangerous than others and all crossings more dangerous at some times than at other times owing to variant conditions and circumstances. The rule is that the more dangerous a crossing is, if the fact of this danger be known to the user of the highway, the greater the care he must exercise in passing over it. Sherlock v. Minneapolis, St. P. S. Ste. M.R. Co.
The judgment appealed from must be affirmed.
BIRDZELL, CHRISTIANSON, BURKE, and BURR, JJ., concur.