State ex rel. North Dakota Workmen's Compensation Board for Use and Benefit of North Dakota Compensation Fund v. Great Northern Railway Co.
| Decision Date | 09 January 1926 |
| Docket Number | 4945 |
| Citation | 209 N.W. 853,54 N.D. 400 |
| Court | North Dakota Supreme Court |
On rehearing July 15, 1926. [Copyrighted Material Omitted]
Appeal from the District Court of Eddy County, Coffey, J.
Reversed and remanded, and judgment of dismissal ordered.
Reserved and remanded.
Murphy & Toner, for appellant.
The last clear chance doctrine applies only where the defendant actually discovers the plaintiff's peril and does not apply where by the exercise of reasonable care the defendant might have discovered plaintiff's peril. Marshall v Hines, 271 F. 165.
The doctrine that the plaintiff must actually be discovered in a place of peril is upheld by the weight of authority in the state courts in the absence of statute. Ry. Co. v. Blackmon, 169 Ala. 304, 53 So. 807.
Where the plaintiff's negligence continues up to the very moment of the accident concurring with the negligence of the defendant, there can be no recovery because the plaintiff's negligence was a proximate cause as well as the negligence of the defendant. Green v. Ry. Co. 143 Cal. 41, 76 P. 719; Watson v. Ry. Co. 133 Mo.App. 246, 34 S.W. 573; Ry. Co. v. Callaghan, 25 Ohio C. C. 115.
They [engineers] have the right to presume that the drivers will observe the precaution which the law imposes upon them as a duty, and keep off the tracks on the approach of trains. Ry. Co. v. Summers, 173 F. 358.
West v. Railway Co. 13 N.D. 230.
F. B. Lambert, Special Assistant Attorney General, and Philip Elliott, Assistant Attorney General, for respondents.
Coulter v. Great N. R. Co. 5 N.D. 568, 67 N.W. 1076.
"A person may assume that a train approaching within 80 rods of the crossing will give the statutory signal, and, in the absence of such signal, such person cannot be regarded as guilty of contributory negligence by attempting to cross the track after looking and listening for an approaching train, where no statutory signal has been given." Newson v. New York C. R. Co. 20 N.Y. 74, 75 Am. Dec. 375.
"A railroad company's failure to sound the bell and whistle at a street crossing, as well as the operation of a train on approaching it at a much higher rate of speed than that permitted by ordinance, would constitute negligence." Merrill v. Minneapolis & S. St. P. R. Co. (S.D.) 129 N.W. 568.
"It is not reversible error for the court to use the term 'proximate cause' without otherwise defining it, in the absence of a request for an appropriate instruction." McGregor v. Great Northern R. Co. 31 N.D. 471, 154 N.W. 261.
"Although the plaintiff's evidence tends to prove his own negligence, the affirmative of that issue is still with the defendant, and because he may use the evidence of the plaintiff to support his side of the case, that fact does not shift the burden of proof from the defendant to plaintiff." Mares v. Northern P. R. Co. 3 Dak. 336.
"It is a rule of nearly all courts, that no judgment will be reversed on account of the giving of erroneous instructions, unless it appears probable that the jury were misled by them." Thompson Trials, § 2401.
Unless the negligence of the plaintiff proximately contributes to the injury it does not constitute contributory negligence which bars a recovery. The party who has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. Action v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225.
This is an appeal from a judgment. The action is brought in the name of the state on relation of the Workmen's Compensation Bureau, for the use and benefit of the Workmen's Compensation Fund, and Ted A. Byfield, against the appellant railway company and two employees of the latter, Tweeton and Colony. At the trial the action was dismissed as to the individual defendants. One of the use plaintiffs, Ted A Byfield, in the fall of 1921 was engaged in work upon a certain highway hauling gravel by truck. On the 9th day of November, 1921, he was severely injured when the truck he was driving collided with the engine of a branch line passenger train upon a crossing of the Great Northern Railroad some four or five miles west or northwest of Devils Lake. For this injury he received compensation from the Workmen's Compensation Fund, and this action is brought under the Workmen's Compensation Act of 1919, chapter 73 of the Laws of the Special Session of 1919, chapter 141 of the Session Laws of 1921, chapter 347 of the Session Laws of 1923 and chapter 219 of the Session Laws of 1925. Section 20 of the act provides that when a compensable injury is sustained under circumstances creating in some other person than the Workmen's Compensation Fund a legal liability to pay damages, the fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person, and further that any excess so recovered above any award paid or to be paid from the fund shall be paid to the injured employee or his dependents less the expense of the action. The facts necessary to an understanding of the questions presented upon the record may be stated substantially as follows: Ted A. Byfield was employed by Ramsey county as a truck driver hauling gravel upon a road project, as above stated, on the 9th day of November, 1921. As such employee he was insured in the Workmen's Compensation Fund. The gravel pit from which the hauling was done was situated some four miles south and east of a railroad crossing of the defendant railroad which was four or five miles west or northwest of Devils Lake. The gravel was hauled from this pit to a road project which lay north and west of the crossing in question. Byfield had been engaged upon this project in hauling gravel between these points for at least five days, making about eight trips, sometimes less, daily and crossing this particular crossing twice that number of times each day. At about 2:30 o'clock in the afternoon on the day in question, he approached the railroad crossing from the south, driving a loaded 2 1/2 ton Nash-Quad truck. The truck was not equipped with a windshield. There was a top over the driver's seat which did not obstruct the vision ahead but which did, to some extent, obstruct the vision to the sides, there being sloping curtains with slits or openings in them covered with a transparent or semi-transparent substance. The openings were not wide and were somewhat below the horizontal line of vision of the driver as he sat erect in his seat. The seat was of sufficient width to accommodate four persons. The defendant was alone and sat at the extreme left behind the steering wheel which was set horizontal upon a perpendicular shaft. The crossing in question is about 2,000 feet west or northwest of a junction between the Soo railroad and the Great Northern railroad. The Soo line at this point runs east and west and the Great Northern runs northwest and southeast, more west than north, the crossings of the two railroads being some 600 feet apart on the highway in question. Byfield had crossed the Soo railroad, and as he approached the Great Northern he followed a bend in the road upon which he was driving, which was incidental to the road crossing the railway at right angles. For a short distance, therefore, his direction would tend to be parallel with the railroad and his forward view would be to the west or northwest. The wind was blowing from the north or northwest. As he neared the crossing, there was a rather sharp turn to the right, although photographs clearly indicate that the angle is considerably greater than ninety degrees. The railroad was upon a grade at this point, which the testimony shows to have been 5 1/2 or 8 or 10 feet in height, the latter figures being estimates or guesses, the first purporting to be an accurate measurement. At the time of the accident, the Great Northern line at this point was double tracked. Going up the incline, the driver shifted his truck into low gear and crossed over the first track in safety. As he approached the second track a train coming from the east, upon his right, struck the front end of his truck causing the injury in question. The photographs in evidence show the crossing to be of ordinary construction with planks on either side of each rail with a fill or partial fill between the planks. Looking from the railroad crossing eastward, or southeasterly along the line of the Great Northern railroad, there is no obstruction to the vision until the eye reaches a tower located near the intersection of the Soo and Great Northern, a distance of a quarter of a mile or more. There is in the vicinity of the tower, that is, within 100 feet or so of the tower, a slight cut where the rails of the Great Northern railroad are not distinctly visible, but for this distance there...
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