Cain v. Northern Pacific Railway Company
| Decision Date | 13 October 1914 |
| Court | North Dakota Supreme Court |
Rehearing denied November 18, 1914.
Appeal from the District Court of Stark County, Crawford, J.
Reversed.
Previous order set aside and judgment entered for the defendant notwithstanding the verdict.
Watson & Young, and E. T. Conmy, for appellant.
There is no negligence shown on the part of defendant that proximately caused the injury and damages. Pennsylvania Co. v. Davis, 4 Ind.App. 51, 29 N.E. 425; Early v Louisville, H. & St. L. R. Co. 115 Ky. 13, 72 S.W. 350; Cincinnati, N. O. & T. P. R. Co. v. Reynolds, 31 Ky. L. Rep 529, 102 S.W. 890.
The undisputed evidence shows plaintiff was guilty of contributory negligence as a matter of law. The question of negligence becomes one of law for the court when the facts are undisputed and the inferences to be drawn from them are so clear that reasonable men ought not to differ. Northern P. R. Co. v. Tracy, 111 C. C. A. 557, 191 F. 15; Elliott, Railroads, § 1179c, p. 394.
This action is res judicata. The same issues have already been tried and a decision rendered on the merits by a court of competent jurisdiction. Seep v. Ferris-Haggarty Copper Min. Co. 120 C. C. A. 191, 201 F. 893; United States v. Wonson, 1 Gall. 5, F. Cas. No. 16,750; Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732; Walker v. New Mexico & S. P. R. Co. 165 U.S. 596, 41 L.Ed. 841, 17 S.Ct. 421, 1 Am. Neg. Rep. 768; Capital Traction Co. v. Hof, 174 U.S. 13, 43 L.Ed. 877, 19 S.Ct. 580; Chicago Theological Seminary v. People, 189 Ill. 439, 59 N.E. 980.
Where the mandate of a superior court requires the entry and execution thereof and in conformity therewith, no different order or judgment can be entered in the lower court. Newberry v. Blatchford, 106 Ill. 584; Hook v. Richeson, 115 Ill. 431, 5 N.E. 98; Gage v. Bailey, 119 Ill. 539, 9 N.E. 199; Parker v. Shannon, 121 Ill. 452, 13 N.E. 155; Gage v. Stokes, 125 Ill. 40, 16 N.E. 925; Buck v. Buck, 119 Ill. 613, 8 N.E. 837; West v. Douglas, 145 Ill. 164, 34 N.E. 141; Lynn v. Lynn, 160 Ill. 307, 43 N.E. 482.
And where questions have been passed upon and determined by the supreme court and the cause is remanded generally, it is not open in the lower court as to such questions. Brooklyn v. Orthwein, 140 Ill. 620, 31 N.E. 111; Reed v. West, 70 Ill. 479; Rising v. Carr, 70 Ill. 596; Ogden v. Larrabee, 70 Ill. 510; Champaign County v. Reed, 106 Ill. 389; Loomis v. Cowen, 106 Ill. 660; Smyth v. Neff, 123 Ill. 310, 17 N.E. 702; Tucker v. People, 122 Ill. 583, 13 N.E. 809; Burton v. Perry, 146 Ill. 71, 34 N.E. 60; Palmer v. Woods, 149 Ill. 146, 35 N.E. 1122.
Full faith and credit is given to adjudications of a Federal court by state courts. Wandling v. Straw, 25 W.Va. 692; Borches v. Arbuckle Bros. 111 Tenn. 498, 78 S.W. 266; Holstein v. Edgefield County, 64 S.C. 374, 42 S.E. 180; Baldwin v. Rice, 44 Misc. 64, 89 N.Y.S. 738, 183 N.Y. 55, 75 N.E. 1096; Wonderly v. Lafayette County, 150 Mo. 635, 73 Am. St. Rep. 474, 51 S.W. 745; Thornton v. Natchez, 88 Miss. 1, 41 So. 498; 11 Decen. Dig. § 638; 24 Am. & Eng. Enc. Law, § 9, 833.
The question of contributory negligence must be considered and determined regardless of defendant's negligence. West v. Northern P. R. Co. 13 N.D. 221, 100 N.W. 254; Hope v. Great Northern R. Co. 19 N.D. 438, 122 N.W. 997; Cromwell v. Sac County, 94 U.S. 351, 25 L.Ed. 195; Washington Steam Packet Co. v. Sickles, 24 How. 333, 16 L.Ed. 650; Bissell v. Spring Valley Twp. 124 U.S. 225, 31 L.Ed. 411, 8 S.Ct. 495; Hanna v. Read, 102 Ill. 596, 40 Am. Rep. 608; Wright v. Griffey, 147 Ill. 496, 37 Am. St. Rep. 228, 35 N.E. 732; Leopold v. Chicago, 150 Ill. 568, 37 N.E. 892; Louisville, N. A. & C. R. Co. v. Carson, 169 Ill. 247, 48 N.E. 402; Markley v. People, 171 Ill. 260, 63 Am. St. Rep. 234, 49 N.E. 502; Young v. People, 171 Ill. 299, 49 N.E. 503; Chicago Theological Seminary v. People, 189 Ill. 439, 59 N.E. 979; Wilson v. Deen (Milne v. Deen) 121 U.S. 525, 30 L.Ed. 980, 7 S.Ct. 1004; Louis v. Brown Twp. 109 U.S. 163, 27 L.Ed. 892, 3 S.Ct. 92; Corcoran v. Chesapeake & O. Canal Co. 94 U.S. 741, 24 L.Ed. 190; Southern P. R. Co. v. United States, 168 U.S. 18, 42 L.Ed. 355, 18 S.Ct. 18; Stearns v. Lawrence, 28 C. C. A. 66, 54 U.S. App. 532, 83 F. 742.
A defendant may interpose as many defenses as he has, and the court may determine all, though the decision of any one may be sufficient to end the case, and as to such as are considered and determined the parties are concluded. Sheldon v. Edwards, 35 N.Y. 279; Florida C. R. Co. v. Schutte, 103 U.S. 118-142; 26 L.Ed. 327-335; Hawes v. Contra Costa Water Co. 5 Sawy. 296, F. Cas. No. 6,235; Doty v. Brown, 4 N.Y. 71, 53 Am. Dec. 350; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Charles E. Henry Sons Co. v. Mahoney, 97 Ill.App. 313; 2 Decen. Dig. p. 1097, and cases cited.
T. F. Murtha and C. H. Starke, for respondents.
It is the duty of men in charge of a train approaching a public crossing to keep a special lookout to avoid collisions with objects that might be lawfully on the crossing. In such cases the law imposes exceptional care. Bishop v. Chicago, M. & St. P. R. Co. 4 N.D. 536, 62 N.W. 605; Coulter v. Great Northern R. Co. 5 N.D. 568, 67 N.W. 1046; Johnson v. Great Northern R. Co. 7 N.D. 284, 75 N.W. 250, 4 Am. Neg. Rep. 568; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Belshan v. Illinois C. R. Co. 117 Minn. 110, 134 N.W. 507; San Antonio & A. P. R. Co. v. Votaw, Tex. Civ. App. , 81 S.W. 130.
That reasonable men might not agree on just what should have been done affords no reason or excuse for defendant's negligence. If all reasonable men could agree on the question of negligence or contributory negligence, they would agree as did the jury, that plaintiff was not negligent. The question of contributory negligence was clearly one for the jury. Bishop v. Chicago, M. & St. P. R. Co. 4 N.D. 536, 62 N.W. 605, supra; Johnson v. Great Northern R. Co. 7 N.D. 284, 75 N.W. 250, 4 Am. Neg. Rep. 568, supra; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225, supra; Belshan v. Illinois C. R. Co. 117 Minn. 110, 134 N.W. 507, supra; 33 Cyc. 922-924; Klotz v. Winona & St. P. R. Co. 68 Minn. 341, 71 N.W. 257, 3 Am. Neg. Rep. 201; Continental Improv. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; St. Louis, I. M. & S. R. Co. v. Tomlinson, 78 Ark. 251, 94 S.W. 613; St. Louis, I. M. & S. R. Co. v. Denty, 63 Ark. 177, 37 S.W. 719; Virginia Midland R. Co. v. White, 84 Va. 498, 10 Am. St. Rep. 874, 5 S.E. 573; Zipperlen v. Southern P. Co. 7 Cal.App. 206, 93 P. 1049; Bullock v. Wilmington & W. R. Co. 105 N.C. 180, 10 S.E. 988; Crowley v. Louisville & N. R. Co. 21 Ky. L. Rep. 1434, 55 S.W. 434; Wilds v. Hudson River R. Co. 33 Barb. 503; Illinois C. R. Co. v. Murphy, 11 L.R.A.(N.S.) 352, and annotation, 123 Ky. 787, 97 S.W. 729.
Men suddenly placed in dangerous positions must act in a careful and prudent manner and according to their best judgment; and because it can afterwards be pointed out that a different course of conduct might have produced different results, affords no true ground upon which to base the claim of negligence. Chicago & N.W. R. Co. v. Netolicky, 14 C. C. A. 615, 32 U.S. App. 168, 406, 67 F. 668; Haff v. Minneapolis & St. L. R. Co. 14 F. 558, 7 Am. Neg. Cas. 571; The City of Norwalk, 55 F. 102.
The United States district court could do nothing but to grant a new trial, and a new trial having been ordered, the plaintiff could take a nonsuit and begin his action over in the same or a different court. The former proceedings do not constitute res judicata. 3 Cyc. 481, 482 and note, 84; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 263, 41 L.Ed. 994, 17 S.Ct. 992.
The decision on a prior appeal fixes the law of the case on the same facts, but not on a different state of facts. Chapman v. Greene, 27 S.D. 178, 130 N.W. 30; 3 Cyc. 493, and note 42; Hastings v. Foxworthy, 34 L.R.A. 321, see notes pages 332, 345, 346.
The accident upon which this action is based occurred about 10 o'clock in the forenoon of the 28th of August, 1909, upon a crossing of the defendant company at the village of Taylor North Dakota, the crossing being practically a street of the village, about 1,050 feet east of the depot. The defendant's tracks at this point run practically east and west, but from the east the roadway approaches at a three-degree curve beginning about one half a mile east of the depot and extending about 1,600 feet or until about 900 feet from the depot, where the track continues and goes straight west through the town. The crossing in question is on the curve, about 150 feet east of the beginning of said straight portion of the track. There is also a passing track south of the main track parallel thereto, and 14 feet distant therefrom. Upon the day of the accident the company was engaged in ballasting its tracks at that point, and planks had been removed from the crossing for that purpose. A steam traction engine belonging to one Tracey was being driven that day by one Brown, engineer, and one Naset, fireman, both in the employ of Tracey. They approached the crossing from the south, and, desiring to cross to the north, placed loose planks between the rails, and succeeded in crossing the first or passing track and getting the front wheels of the tractor over the main track and the rear or drive wheels between the rails thereof, but it was impossible to get the drivers over the north rail of the main track. When the tractor was in that position the men in charge discovered a train coming from the east. This discovery was made, owing to smoke from the train while at...
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