Christopherson v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company

• Citation: 147 N.W. 791,28 N.D. 128
• Decision Date: 28 May 1914
• Court: United States State Supreme Court of North Dakota

147 N.W. 791

28 N.D. 128

THOMAS CHRISTOPHERSON v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, a Corporation

Supreme Court of North Dakota

May 28, 1914

Appeal fro District Court, Barnes County, J. A. Coffey, J.

From a judgment in defendant's favor, and from an order denying a new trial, plaintiff appeals.

Affirmed.

Page & Englert, for appellant.

The plaintiff cannot be held guilty of contributory negligence as a matter of law, because he did not stop and listen before crossing the track. The test is, the use of ordinary care. Coulter v. Great Northern R. Co. 5 N.D. 568, 67 N.W 1046; Kunkel v. Minneapolis, St. P. & S. Ste. M. R Co. 18 N.D. 367, 121 N.W. 830; Solberg v Schlosser, 20 N.D. 307, 30 L.R.A.(N.S.) 1111, 127 N.W 91; Hollinshead v. Minneapolis, St. P. & S. Ste. M. R. Co. 20 N.D. 642, 127 N.W. 993; Messenger v. Valley City Street & Interurban R. Co. 21 N.D. 82, 32 L.R.A.(N.S.) 881, 128 N.W. 1023; Code 1905, § 7295.

The statute requiring notice to be given is a limitation statute. It amounts to no more. Arp v. Allis-Chalmers Co. 130 Wis. 454, 8 L.R.A.(N.S.) 997, 118 Am. St. Rep. 1036, 110 N.W. 386; Code 1905, § 6770.

The matter of the sufficiency of notice of claim is one of defense. It must be properly pleaded and proved. Mexican Nat. R. Co. v. Jackson, Tex. Civ. App. , 32 S.W. 230; Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S.W. 689; Smith v. Power, 23 Tex. 29; Van Burg v. Van Engen, 76 Neb. 816, 107 N.W. 1006; White v. Century Gold Min. & Mill. Co. 28 Utah 331, 78 P. 868; Wise v. Williams, 72 Cal. 544, 14 P. 204; Wright v. Ward, 65 Cal. 525, 4 P. 534; Haines v. Amerine, 48 Ill.App. 570; Hatch v. Minneapolis, St. P. & S. Ste. M. R. Co. 15 N.D. 490, 107 N.W. 1087; Pracht v. McNee, 40 Kan. 1, 18 P. 925; Hunter v. Hunter, 63 S.C. 78, 90 Am. St. Rep. 663, 41 S.E. 33; Moore v. Smith, 29 S.C. 254, 7 S.E. 485; Borland v. Haven, 37 F. 394.

Lee Combs & L. S. B. Ritchie, for respondent (John L. Erdall, of counsel).

When the view or hearing of a traveler approaching a railroad crossing is so obstructed that he cannot otherwise satisfy himself as to whether or not it is prudent to cross, it is his duty, where he is familiar with the crossing or aware of the facts, to stop and look or listen, before trying to cross the track. Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 70 L.R.A. 681, 81 P. 801, 3 Ann. Cas. 700, 18 Am. Neg. Rep. 316; Pennsylvania Co. v. Frana, 112 Ill. 398; Moore v. Chicago, St. P. & K. C. R. Co. 102 Iowa 595, 71 N.W. 569; Nosler v. Chicago, B. & Q. R. Co. 73 Iowa 268, 34 N.W. 850; Atchison, T. & S. F. R. Co. v. Willey, 60 Kan. 819, 58 P. 472, 6 Am. Neg. Rep. 515; Philadelphia & B. C. R. Co. v. Holden, 93 Md. 417, 49 A. 625; Donnelly v. Boston & M. R. Co. 151 Mass. 210, 24 N.E. 38; Lau v. Lake Shore & M. S. R. Co. 120 Mich. 115, 79 N.W. 13; Houghton v. Chicago & G. T. R. Co. 99 Mich. 308, 58 N.W. 314; Clark v. Northern P. R. Co. 47 Minn. 380, 50 N.W. 365; Hunter v. Montana C. R. Co. 22 Mont. 525, 57 P. 140; Carter v. Central Vermont R. Co. 72 Vt. 190, 47 A. 797; Wilson v. Illinois C. R. Co. 150 Iowa 33, 34 L.R.A.(N.S.) 687, 129 N.W. 340.

The driver of the team at the time of the accident was guilty of gross negligence in his acts and conduct. Seefeld v. Chicago, M. & St. P. R. Co. 70 Wis. 216, 5 Am. St. Rep. 168, 35 N.W. 278; Keyley v. Central R. Co. 64 N.J.L. 355, 45 A. 811, 7 Am. Neg. Rep. 452; Blackburn v. Southern P. Co. 34 Ore. 215, 55 P. 225; Lightfoot v. Winnebago Traction Co. 123 Wis. 479, 102 N.W. 30; Shufelt v. Flint & P. M. R. Co. 96 Mich. 327, 55 N.W. 1013; Hope v. Great Northern R. Co. 19 N.D. 438, 122 N.W. 997, and cases cited; West v. Northern P. R. Co. 13 N.D. 221, 100 N.W. 254.

Where the pleadings and evidence show that more time has elapsed than that allowed by the statute, in which to bring the action, the burden is on the plaintiff to show that the statute is imperative. Paine v. Dodds, 14 N.D. 189, 116 Am. St. Rep. 674, 103 N.W. 931, and cases cited; Winter v. Winter, 101 Wis. 494, 77 N.W. 883, and cases cited; 25 Cyc. 1226, and cases there cited in the note, 1227, and note 55; Bruce v. Luck, 4 G. Greene, 143; Rock Island Plow Co. v. Masterson, 96 Ark. 446, 132 S.W. 216; Weaver v. Davis, 2 Ga.App. 455, 58 S.E. 786.

The rule is that the existence of causes of actions which are transitory in their nature is determined by the lex loci, and this same rule or law governs the defense. 38 Cyc. 549; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 18 L.R.A. 433, 38 Am. St. Rep. 163, 11 So. 803; Mexican C. R. Co. v. Gehr, 66 Ill.App. 173; Baltimore & O. S.W. R. Co. v. Reed, 158 Ind. 25, 56 L.R.A. 468, 92 Am. St. Rep. 293, 62 N.E. 488; Dorr Cattle Co. v. Des Moines Nat. Bank, 127 Iowa 153, 98 N.W. 918, 4 Ann. Cas. 519, Iowa , 102 N.W. 836; Johnson v. Chicago & N.W. R. Co. 91 Iowa 248, 59 N.W. 66; Louisville & N. R. Co. v. Whitlow, 114 Ky. 470, 41 L. R.A. 614, 43 S.W. 711; Turner v. St. Clair Tunnel Co. 111 Mich. 578, 36 L.R.A. 134, 66 Am. St. Rep. 397, 70 N.W. 146, 1 Am. Neg. Rep. 270; Chicago, St. L. & N. O. R. Co. v. Doyle, 60 Miss. 977; Charlton v. St. Louis & S. F. R. Co. 200 Mo. 413, 98 S.W. 529; Kimball v. Kimball, 75 N.H. 291, 73 A. 408; Laird v. Connecticut & P. River Co. 62 N.H. 254, 13 Am. St. Rep. 564; Voshefskey v. Hillside Coal & I. Co. 21 A.D. 168, 47 N.Y.S. 386; Alexander v. Pennsylvania Co. 48 Ohio St. 623, 30 N.E. 69; Knowlton v. Erie R. Co. 19 Ohio St. 260, 2 Am. Rep. 395; O'Reilly v. New York & N.E. R. Co. 16 R. I. 388, 5 L.R.A. 364, 6 L.R.A. 719, 17 A. 171, 906, 19 A. 244; East Tennessee, V. & G. R. Co. v. Lewis, 89 Tenn. 235, 14 S.W. 603; Southern P. Co. v. Dusablon, 48 Tex. Civ. App. 203, 106 S.W. 766; Morrisette v. Canadian P. R. Co. 76 Vt. 267, 56 A. 1102; Shaver v. White, 6 Munf. 110, 8 Am. Dec. 730; Boston & M. R. Co. v. McDuffey, 25 C. C. A. 247, 51 U.S. App. 111, 79 F. 934; 38 Cyc. 556; Arp v. Allis-Chalmers Co. 130 Wis. 455, 8 L.R.A.(N.S.) 997, 118 Am. St. Rep. 1036, 110 N.W. 386.

OPINION

FISK, J.

Plaintiff seeks to recover damages for personal injuries received by him through the alleged negligence of defendant in running its train over a certain public crossing near St. Croix Falls, in the state of Wisconsin, on November 2, 1905. Plaintiff's injury was caused by a collision at such crossing at about 6:30 A. M. on such date, and while plaintiff, his brother, and a lady friend were about to cross the railroad track at such point.

At the close of the plaintiff's testimony the defendant moved for a directed verdict upon the ground, among others, that such testimony disclosed that he was guilty of contributory negligence as a matter of law, which motion was granted and a verdict directed for the defendant. Thereafter plaintiff moved for a new trial, which motion was denied and judgment entered in defendant's favor for costs. The appeal is both from the judgment and from the order denying a new trial.

The assignments of error, of which there are three in number, relate to the rulings of the court aforesaid.

We deem it unnecessary to consider any question presented other than that constituting the first ground of defendant's motion for a directed verdict, for we are agreed that the learned trial court properly granted defendant's motion upon the ground that plaintiff was guilty of contributory negligence, barring his recovery.

The plaintiff's testimony discloses the following undisputed facts: Plaintiff and the other two occupants of the vehicle which consisted of a single-seated top buggy drawn by two horses with the top down, were returning early in the morning from the home of plaintiff's father to St. Croix Falls, and they were required to cross a branch line of defendant's railroad at a point known as "Charlie Pickles' crossing." This crossing was a very dangerous one owing to the fact that the highway approaching thereto is about 20 feet deep and down hill through a narrow cut, just wide enough to permit teams to pass, being only about 15 or 20 feet wide at the crossing, and the railroad track is also in a cut between 15 and 20 feet deep with bur oaks growing on top of either embankment, and extending to a considerable distance down on the sides thereof. These bur oaks were quite thick and from 10 to 12 feet in height. From 12 to 15 rods east of the crossing the railroad track makes a curve, and the cut extends back from the crossing from 15 to 20 rods. At the time of the accident it was somewhat windy, and the proof tends to show that the defendant's servants did not blow its whistle or ring its bell on approaching such crossing. The train came from a northeasterly direction. The plaintiff and his brother were well acquainted with the crossing in question, and knew that it was impossible to see a train approaching from the northeast until they arrived at a point very close to the crossing. They had lived in that community for five or six years prior to the accident, and had been over the crossing repeatedly. Plaintiff and his brother jointly hired the rig to make the trip on the preceding evening for the purpose of visiting their father's home, and plaintiff drove the rig going out and his brother Charlie drove on the return trip and at the time of the accident. Among other things, Charlie testified as follows: "I knew the crossing was a bad one. I knew that the train was about to come or was due at that time. I had been through there five or six times before. I knew it was a pretty bad crossing. I looked back to see if there was any train coming. I knew there was one coming, and I knew I could not see until I got close to the track had it been coming. I could not see any until I got down close to the track. I did not stop the team. I made no other investigation to see whether it was coming or not. You would have to go down on the...