Coulter v. Great Northern R. Co., 6731

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCORLISS, J.
Citation67 N.W. 1046,5 N.D. 568
Docket Number6731
Decision Date05 June 1896

Appeal from District Court, Grand Forks County; Templeton, J.

Action by Robert Coulter against the Great Northern Railway Company. From a judgment for defendant, plaintiff appeals.


Judgment reversed, and a new trial ordered.

Bangs & Fisk, and Tracy R. Bangs, for appellant.

The crossing in question was a public crossing within the purview of section 2976 of the Revised Codes. C. B. & Q. Ry. Co v. Metcalf, 28 L. R. A. 824; C. & A. Ry. Co. v Dillon, 24 Ill.App. 203; Missouri P. Ry. Co. v Lee, 7 S.W. 857; Cranston v. N.Y. Cent. Ry. Co., 11 N.Y.S. 215, affirmed 26 N.E. 756; Ewen v. C. & N. W. Ry. Co., 38 Wis. 633; Missouri Pac. Ry. Co. v. Bridges, 12 S.W. 210; Texas & Pac. Ry. Co. v. Neill, 30 S.W. 369; Webb v. Ry. Co., 57 Me. 117; Smedis v. Brooklyn & C. Ry. Co., 8 Am. and Eng. R. R. Cases, 450. Regardless of statute it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger. C. & A. Ry. Co. v. Dillon, 15 N.E. 182; Kelly v. So. Minn. Ry. Co., 9 N.W. 588; Webb v. Portland & K. Ry. Co., 57 Me. 117; Lillstrom v. N. P. Ry. Co., 20 L. R. A. 587; Bertelson v. C. M. & St. P. Ry. Co. , 5 Dak. 313; Phila. & C. R. Co. v. Troutman, 6 Am. and Eng. Ry. Cases, 117. It is negligence for the railroad company not to so moderate the speed of its trains that the sound of the whistle or bell can be heard in time to give effectual warning to persons upon the street. Elliott on R. & S. 607; Con. & C. v. Stead, 95 U.S. 161; Louisville Ry. Co. v. Com., 14 Am. and Eng. Ry. Cases, 613; 4 Am and Eng. Enc. L. 933; Phila. & C. Ry. Co. v. Hagen, 86 Am. Dec. 541. Care should be commensurate with the danger to be reasonably apprehended, and this rule imposes on railroads the duty of exercising exceptional care at all crossings, because upon the crossing there is a greater reason than at other places to apprehend danger from collisions with persons and domestic animals. Bishop v. Railway Co., 4 N.D. 540; Houston & T. C. Ry. Co. v. Boozer, 8 S.W. 119. The defendant by constructing and maintaining the crossing held out an inducement to the public to use it. Hanks v. Boston & A. Ry. Co., 18 N.E. 218. The question of contributory negligence is a question for the jury and not for the court. Kellogg v. N. Y. Cent. & H. R. R. Co., 79 N.Y. 76; Hanks v. Ry. Co., 18 N.E. 218. It is only when the inference of negligence or contributory negligence is necessarily deducible from the evidence and the circumstances proven, that a court is justified in taking a case from the jury. Hoye v. Ry. Co., 62 Wis. 666; 19 Am. and Eng. Ry. Cases, 247; Craig v. Ry. Co., 118 Mass. 431; Greany v. Ry. Co., 101 N.Y. 419; 24 Am. and Eng. Ry. Cases, 473; 5 N.E. 425. Failure to look and listen when an approaching train could not be seen is not contributory negligence. Petty v. Hannibal & C. Ry. Co., 28 Am. and Eng. Ry. Cases, 618, 88 Mo. 306; Hockford v. Ry. Co., 43 How. Pr. 222. It is for the jury to decide whether under the circumstances proven, plaintiffs failure to look and listen was such contributory negligence as to defeat his recovery. C. I. Co. v. Stead, 95 U.S. 161; Hutchinson v. Ry. Co. 32 Minn. 398; 21 N.W. 212; Tyler v. Ry. Co., 137 Mass. 238; Bower v. Ry. Co., 61 Wis. 457, 21 N.W. 536; Funston v. Ry. Co., 61 Ia. 452, 16 N.W. 518; Greany v. Ry. Co., 101 N.Y. 419, 5 N.E. 425; Pearce v. Humphreys, 34 F. 282.

M. D. Grover and W. E. Dodge, for respondent.

The trial court lost all power and jurisdiction over the subject matter of the controversy, and the controversy itself by the perfection of the appeal to the Supreme Court forty-two days prior to the alleged settlement and allowance of the statement of the case. Sections 5623, 5606, 5607, 5467, 5605, Rev. Codes; Moore v. Booker, 62 N.W. 607, 4 N.D. 543. When the appeal is perfected as provided by law the jurisdiction and control of the court below ceases, and no motion can be entertained or discretionary act performed by the lower court during the pendency of the appeal. 1 Am. and Eng. Enc. L. 623; Draper v. Davis, 102 U.S. 370, 26 L.Ed. 121; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; Contes v. Wilkins, 94 N.C. 174; State v. Roland, 36 La.Ann. 192; Stone v. Spellman, 16 Tex. 432; Levi v. Carrick, 15 Ia. 444. The plaintiff in his complaint did not claim the highway in question as a "street" under the statute but "another road." Section 3016, Comp. Laws; Reynolds v. Great Northern Ry. Co., 69 F. 808. When a railway company is guilty of no act or omission other than such as is involved in the ordinary, usual, customary and legitimate operation and enjoyment of its property, and has violated no statutory requirement regulating or defining its duty, there is no actionable negligence. Brown v. C. M. & St. P. Ry. Co., 22 Minn. 165; Beisiegel v. N. Y. C. Ry. Co., 40 N.Y. 9; Bellefoutaine Ry. Co. v. Hunter, 33 Ind. 335; Lock v. Ry. Co., 15 Minn. 350. One who approaches a dangerous crossing where one or more of his senses are rendered useless or impaired by existing conditions as an obstruction of the view, atmosphere conditions, storms, smoke, and the like, is bound as a matter of law for his own protection, not only to look and listen but to stop before going upon the railroad track to ascertain at his peril whether or not a train is approaching. Houghton v. Ry. Co., 58 N.W. 314; Ry. Co. v. Crisman, 34 P. 286; Schaefert v. Ry. Co., 17 N.W. 893; Seefeld v. Ry. Co., 35 N.W. 278; Kelsey v. Ry. Co., 30 S.W. 339; Jobe v. Ry. Co., 15 So. 129; Ellis v. Ry. Co., 21 At. Rep. 140; Littour v. Ry. Co., 61 F. 591; Shufelt v. Flint, 55 N.W. 1013; Durbin v. Or. Nav. Co., 17 P. 5; Fleming v. Ry. Co., 49 Cal. 253; Dunning v. Bond, 38 F. 814; Reading & C. Ry. Co. v. Ritchie, 102 Pa. 425. The general statute conferring upon the city council control and supervision over the streets of the city, the regulation of the speed of trains and the safety of the general public at railroad crossings of said streets confers upon the city council the exclusive right to legislate upon and control the subjects enumerated. The terms "Public Highway" and "Street" are not the same technically or in legal parlance. The general statutes over the subjects enumerated are "pro tanto" repealed. Hence, neither the general statutes nor the common law obtain with relation to those subjects. And in the absence of any allegation or proof of a violation or disregard by the defendant of any municipal regulation on the subjects;--no actionable negligence is pleaded or proven or liability established. State v. Lippincott, 31 At. Rep. 399; Town of Keyport v. Cherry, 51 N.J.L. 417, 18 At. Rep. 299; Cherry v. Board of Com'rs, 20 At. Rep. 970; State v. Jones, 18 Tex. 874; Cowan's Case, 1 Overton, (Tenn.) 311; Indianapolis v. Croas, 7 Ind. 9; Lafayette v. Jenners, 10 Ind. 74; Clark v. Com., 14 Bush. (Ky.) 166; State v. Morristown, 33 N.J.L. 57; People v. Ry. Co., 118 Ill. 520; Elliot on Roads and Streets, 329; Mobile & Ohio Ry. Co. v. State, 51 Miss. 137, 141; Cleaves v. Jordan, 34 Me. 9. Plaintiff having elected to class Ione avenue as a "public highway' and not as a "street" and all evidence tending to prove that it was a street having been seasonably objected to was properly disregarded. And had it been submitted to the jury the variance between proof and pleading would have been fatal to any verdict that might have been predicated thereon. Hood v. Mfg. Co., 11 So. 10; Harrold v. Jones, 11 So. 747; Ry. Co. v. George, 10 So. 145; Ry. Co. v. Hubbard, 12 S.E. 1020; Ry. Co. v. Mattox, 13 So. 615; Ry. Co. v. Thompkin, 10 S.E. 356; Derrigan v. Rutland, 58 Vt. 128; Ry. Co. v. Scott, 27 S.W. 827; Debolt v. Ry. Co., 27 S.W. 575; Shipman's Pleading, 417 and 423.



From a judgment in favor of the defendant, based upon a verdict directed by the court after the plaintiff had rested, the appeal was taken which brings this case before us. The action was for damages for personal injuries received by plaintiff by being struck by one of defendant's locomotives which was drawing a passenger train on defendant's road. The accident occurred at a public crossing in the City of Grand Forks, in this state. Plaintiff was driving a team upon one of the streets of that city, and as he was attempting to cross the railroad track at the point where such street was carried over the track a moving train collided with him causing injuries which necessitated the amputation of one of his legs. The case developed by him on the trial was sufficient to sustain a verdict in his favor. It appeared that the defendant had recognized the crossing in question as the crossing of a public highway over its track. The street leading up to the defendant's right of way on each side thereof was known as "Ione Avenue." When originally laid out, it did not cross such right of way, but merely abutted thereon on either side. The reason for this was that the person who platted the land on which this avenue was laid out had no control over the defendant's right of way, which already had been established at that point. This plat was made in 1882. But there was evidence in the case tending to prove that Ione avenue had been graded over the defendant's right of way the same as elsewhere, and that it had been used as a public thoroughfare for eight or ten years. It appeared that the street commissioner of Grand Forks City in 1890 and 1891 had done work on that portion of the street on defendants right of way leading up to the crossing, and that defendant had not interfered with such work, or in any manner objected to its being performed by the municipality in the exercise of its control over the public streets of the city. ...

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