Bowers v. Great N. Ry. Co.

• Decision Date: 13 March 1935
• Docket Number: No. 6297.,6297.
• Citation: 65 N.D. 384,259 N.W. 99
• Parties: BOWERS v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

65 N.D. 384

259 N.W. 99

BOWERS

v.GREAT NORTHERN RY. CO.

No. 6297.

Supreme Court of North Dakota.

Jan. 7, 1935.

Rehearing Denied March 13, 1935.

Syllabus by the Court.

1. The mere stopping of a train across a highway, without lights or other signals at the crossing to disclose its presence, is not per se negligence and cannot be considered the efficient cause, but merely as a condition, where injury results from an automobile driven upon the highway and running against the train.

2. To constitute actionable negligence there must be a causal connection between the negligence complained of and the injury sustained, and for negligence to be the proximate cause of the injury, it must appear that defendant owed a duty to plaintiff, that there was a negligent breach, and that injury resulted as a direct consequence of the breach.

3. Negligent obstruction of highway by standing train is determined by whether, under all the circumstances, it is reasonable.

4. A railroad, in operating train over highway crossing, must take such precaution as prudent management with respect to public safety requires.

5. Where a railroad in operating train over ordinary unguarded highway crossing, in regular course of its business, stops on highway crossing in response to imperative semaphore signal at intersecting railway lines, but upon stopping immediately proceeds to back train off crossing, it is not charged with the duty of providing lights or other signals at the crossing, while so occupying it, to warn travelers, even though the night is dark and a blizzard is prevailing.

6. In action for injury and damage sustained to an automobile when it ran into side of freight train occupying crossing, evidence is held insufficient to submit to jury on question of railroad's negligence.

Appeal from Cass County Court; P. M. Paulsen, Judge.

Action by C. F. Bowers against the Great Northern Railway Company for damages for alleged negligence. Judgment for plaintiff, and defendant appeals.

Judgment reversed and action dismissed.

Lawrence, Murphy, Fuller & Powers, of Fargo, and Murphy & Toner, of Grand Forks, for appellant.

Emanuel Sgutt, of Fargo, for respondent.

MOELLRING, Judge.

Plaintiff brings this action to recover damages sustained to an automobile for alleged negligence of the defendant. A trial was had in the lower court which resulted in a verdict and judgment in favor of the plaintiff. On this appeal defendant presents ten assignments of error. At the close of plaintiff's case, defendant made a motion to dismiss the action, which motion was denied; whereupon defendant moved for a directed verdict in favor of the defendant for dismissal of the case, which was also denied. At the close of the evidence, defendant again made a motion for dismissal of the action, which likewise was denied. These assignments of error are known as assignments Nos. 5, 6, and 7, respectively.

There is very little dispute in the evidence, and the record discloses that on December 23, 1933, plaintiff was driving a Buick eight-cylinder coupé from Minneapolis, Minn., to Fargo, N. D., on highway No. 2. Riding with him in the same seat were his sister, Mrs. Alta Johnson, and her daughter. At the village of Glyndon, Minn., highway No. 2 is intersected by defendant's railway line at right angles. The weather was very cold and a blizzard was prevailing. While proceeding on this highway at about 9:30 o'clock in the evening, and while a freight train of the defendant was standing across said highway at Glyndon, plaintiff's coupé collided with one of the box cars which constituted part of the train.

The complaint alleges, and it is the contention of the plaintiff, that at the time the collision occurred the defendant was guilty of negligence by obstructing the highway with its train, and the particular grounds of such alleged negligence are stated in the complaint thus: “That at said time and place, the defendant and its servants moved a freight train of the defendant on same public crossing and negligently and carelessly left said train there obstructing and blocking said highway and crossing during the nighttime and without keeping any lookout, flagmen or guard at said crossing or displaying proper warning lights, signs or signals, and without properly protecting crossing and without in any way warning the plaintiff or any travelers of the presence of such obstacle, although it was dark and during a severe storm, making it difficult for travelers to see said train; all of which was without due regard or care for the lives and safety of travelers on public highway No. 2 and their property and particularly the property of the plaintiff.”

The defendant in its answer denies that it was negligent and states that it was acting clearly within its right and in the usual and ordinary use of its tracks across the highway at the time the collision occurred; and that if the property of the plaintiff was damaged, the same was due to the lack of ordinary care and contributory negligence of the plaintiff. The issues presented by the pleadings, therefore, are: (1) Was the defendant guilty of any negligence which proximately contributed to the plaintiff's damage? and (2) Was the plaintiff guilty of negligence proximately contributing to his damage?

As assignments of error Nos. 5, 6, and 7 challenge the whole record as to whether or not there are sufficient facts to support the verdict as a matter of law, it is necessary, therefore, that we search the whole record and consider all the material facts disclosed.

The evidence shows, further, that the freight train left Crookston, Minn., that evening en route to Barnesville, in the same state, and arrived at Glyndon a very short time before the collision occurred. A line of the Northern Pacific Railway intersects the said line of the defendant at Glyndon, and at the point of intersection there is an interlocking and derailing system; also a semaphore arrangement with appropriate visual signals, including lights, to indicate whether an approaching train may proceed or otherwise. If the semaphore signals are set against proceeding, then a stop must be made or the train would be derailed. The engineer who drove the locomotive that pulled the train testified that they had orders to run from Crookston to Barnesville without stopping. However, it was their duty to respect the semaphore signals at the intersection. The train arrived at Glyndon under control, and the engineer testified that he gave the usual warning on approaching the crossing. The engine was equipped with a headlight which was burning brightly, and the rear of the train was protected by appropriate lights on the caboose, which reflected to the rear, front, and sides. The engineer was unable to see the lights of the semaphore until the locomotive had passed over the crossing a distance of about 100 feet. Immediately upon discovering that the signals were against him, he applied the brakes and the train came to a stop in the usual distance with the locomotive about 200 feet from the crossing, a portion of the train extending over the crossing. As soon as the train came to a full stop, he immediately gave the signal preliminary to backing the train, and it was while he was giving this warning that the fireman first observed plaintiff's automobile approaching on the highway. As soon as the whistle stopped blowing, he told the engineer that a car was approachingand not to move the train. The engineer testified:

“Q. Did you immediately back up? A. No.

Q. Why? A. The fireman was looking back on his side and he seen a car coming and he said, ‘Don't move, there's a car coming.’ He says, ‘They hit.”’

The fireman testified in part: “A. Well, immediately after we stopped why the engineer says, ‘We'll back off the crossing,’ and he whistled to back up.

Q. What kind of a whistle is that? A. Three short blasts.

Q. Long or short? A. Three short blasts.

Q. While he was doing that what were you doing? A. Watching out.

Q. While he was blowing the whistle did you see anything? A. See an automobile coming toward the track.

Q. That was on the highway? A. Yes.”

He testified further:

“Q. At the time you first saw the car was the whistle blowing? A. Yes.

Q. So that at that time you didn't tell the engineer a car was coming? A. That requires about two seconds.”

Again he testified:

“Q. Well, for how long a distance did you see that car coming? A. Well, I could see that car coming from way over at the garage there.

Q. Was that quite a ways back? A. Yes, I never measured it but they testified here about a block and a half.”

He testified further:

“Q. He was whistling at that time. Now, did you say anything to the engineer as he quit whistling? A. He couldn't hear me talk until he stopped whistling. Then I told him, ‘Don't move, there's a car coming.”’

He testified, also, that the automobile was traveling at a speed of about 25 miles an hour and that its speed was the same when it struck the box car.

The train crew consisted of the conductor, engineer, fireman, and two brakemen. The head brakeman testified that as soon as the train stopped he and the other brakeman left the caboose at the rear of the train and walked towards the engine, which would also be in the direction of the crossing; that he proceeded along the east side of the train and the other brakeman on the opposite side. He stated that it was customary for the brakemen to get out and inspect the train as soon as it stopped; that he saw the lights of the automobile approaching from the east on the highway; and that he was about 200 feet from the crossing when the collision occurred. He was carrying a lighted lantern at the time, and when he first saw the approaching coupé it was between the garage and the restaurant. The undisputed evidence in the case shows that the restaurant is about one block from the crossing and that the garage is about one and one-half blocks. The head brakeman also stated that the automobile approached at a...