Cowan v. Minneapolis, St. Paul & Sault Ste Marie Railway Co.
| Decision Date | 01 April 1919 |
| Docket Number | 1915 |
| Citation | 172 N.W. 322,42 N.D. 170 |
| Court | North Dakota Supreme Court |
Appellant's petition for rehearing denied April 11, 1919.
Action for personal injuries, District Court, Stutsman County Nuessle, J.
From order and judgment granted notwithstanding the verdict in favor of plaintiff, plaintiff appeals.
Reversed.
Judgment of the trial court reversed, and a new trial granted, with costs of this appeal to the appellant.
Knauf & Knauf (John A. Jorgenson, of counsel), for appellant.
The true test of the engineer's duty is involved in the question whether he has reasonable ground to believe, with all the knowledge of the surroundings which due diligence requires of him, that the life of a fellow man is in peril and that the danger to his person can only be averted by stopping or reducing the speed of the train. Whart. Neg. § 301; Tanner v. Louisville & N. R. Co. 60 Ala. 640; Needham v. San Francisco S. J. R. Co. 37 Cal. 409.
When intestate acted like a drunken man, and made no effort to leave the trestle, the engineer should have stopped the train. 2 Wood, Railway Law, 1268, and note 1; Kenyon v. New York C. & H. R. R. Co. 5 Hun, 481; Sheridan v. Brooklyn City & N. R. Co. 36 N.Y. 39, 93 Am. Dec. 490; Buel v. New York C. R. Co. 31 N.Y. 314, 88 Am. Dec. 271; Galena & C. U. R. Co. v. Yarwood, 17 Ill. 509; Whart. Neg. § 304; Clark v. W. & W. R. Co. 14 L.R.A. 749.
Notwithstanding the previous negligence of the plaintiff, if, at the time the injury was done, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damage. This doctrine was subsequently approved in Saulter v. New York & W. S. S. Co. 88 N.C. 123, 43 Am. Rep. 736; Turrentine v. Richmond & D. R. Co. 92 N.C. 638; Roberts v. Richmond & D. R. Co. 88 N.C. 560; Meredith v. Cranbery Coal & I. Co. 99 N.C. 576; Farmer v. Wilmington & W. R. Co. 99 N.C. 564; Bullock v. Wilmington & W. R. Co. 105 N.C. 180; Wilson v. Norfolk & S. R. Co. 90 N.C. 69; Carlton v. Wilmington & W. R. Co. 104 N.C. 365; Randall v. Richmond & D. R. Co. 104 N.C. 410; Pickett v. W. & W. R. Co. 30 L.R.A. 257.
The jury did not find on all of the issuable facts involved under the pleadings and in the evidence in the case, and therefore the special findings as to whether the conductor knew the plaintiff was actually partially over the rail of the track does not govern the general verdict. McDermott v. Higby, 23 Cal. 489; Bank v. Peck, 8 Kan. 665; Freedman v. New York, N. H. & H. R. Co. 71 A. 900; Baker v. New York, N. H. & H. R. Co. 101 F. 545; Kungan v. Foster, 102 N.E. 103; Pint v. Bauer, 16 N.W. 425; Lane v. Lenfest, 42 N.W. 85.
Lee Combs, S.E. Ellsworth, and John L. Erdall, for respondent.
"A complaint in an action to recover damages for negligence must state the act of negligence complained of, and the plaintiff must recover, if at all, upon the particular act of negligence stated in the complaint." Hall v. Northern P. R. Co. 16 N.D. 60, 111 N.W. 609.
Where plaintiff in his complaint alleges merely specific acts of negligence on defendant's part, he will be restricted in the trial to proof of such acts. Gast v. Northern P. R. Co. 28 N.D. 118, 147 N.W. 793; 14 Enc. Pl. & Pr. 342; 29 Cyc. 584; Hart v. Northern P. Co. 116 C.C.A. 12, 196 F. 181.
"Wilful negligence is not simply greater negligence than that of injured party, nor does it necessarily include the element of malice or an actual intent to injure another; but it is a reckless disregard of the safety of the person or property of another by failing, after discovering the peril, to exercise ordinary care to prevent the impending injury. Anderson v. Minneapolis, St. P. & S. Ste. M. R. Co. 103 Minn. 224, 114 N.W. 1123; Alger Smith & Co. v. Duluth-Superior Traction Co. 93 Minn. 314, 101 N.W. 298; St. Louis & S. F. R. Co. v. Summers, 97 C.C.A. 328, 173 F. 358.
The liability of defendant does not arise "unless defendant's servants actually knew of decedent's peril and thereafter failed to exercise ordinary care to avoid injuring him." Anderson v. Minneapolis, St. P. & S. Ste. M. R. Co. supra; Fonda v. St. Paul City R. Co. 71 Minn. 450, 74 N.W. 166; Lando v. Chicago, St. P. M. & O. R. Co. 81 Minn. 279, 83 N.W. 1089; Olson v. Northern P. R. Co. 87 N.W. 843, 94 Minn. 258; Oklahoma City R. Co. v. Barkett (Okla.) 118 P. 350; Dahmer v. Northern P. R. Co. (Mont.) 136 P. 1059.
The railway company or the property owner, as the case may be, must refrain from injuring the trespasser only after, and not before, he has knowledge of his perilous situation. Hope v. Great Northern R. Co. 19 N.D. 438, 122 N.W. 997; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Costello v. Farmer's Bank, 34 N.D. 131; Bostwick v. R. Co. 2 N.D. 440.
"Where the special findings establish that plaintiff's injuries resulted from one of the ordinary risks which he had assumed when he entered into defendant's employ, it was the duty of the court to set aside the general verdict in his favor and render judgment for the defendant." Metz v. Missouri P. R. Co. (Kan.) 135 P. 578. See also: Felton v. C. R. I. P. R. Co. (Iowa) 29 N.W. 618; Colwell v. Parker (Kan.) 105 P. 524; Fairbanks v. Cincinnati R. Co. 66 F. 471; Plyler v. P. Portland Cement Co. (Cal.) 92 P. 56; Vogt v. Honstain, 85 Minn. 160, 88 N.W. 443; Roe v. Winston, 86 Minn. 77, 90 N.W. 122; Lando v. Chicago, St. P. M. & O. R. Co. 81 Minn. 279, 83 N.W. 1089; Olson v. Northern P. R. Co. 84 Minn. 258, 87 N.W. 843; Lathrop v. Fargo, M. Street R. Co. 23 N.D. 246; Welch v. Fargo & M. Street R. Co. 24 N.D. 463; Oakland v. Nelson, 28 N.D. 456; Swallow v. First State Bank, 35 N.D. 608.
This is an action for personal injuries. In the trial court the plaintiff recovered a verdict of $ 17,000. Upon motion made thereafter, judgment was granted non obstante. The plaintiff has appealed from the order and judgment so made therefor.
On June 23, 1915, the plaintiff, while in an intoxicated condition and while prostrate upon the railroad tracks in the yards of the defendant at Wilton, North Dakota, was run over and injured by the train of the defendant, thereby occasioning the loss of his left arm and the major portion of his right hand. The plaintiff at the time was a trespasser and manifestly guilty of contributory negligence. There is evidence in the record that at the time the plaintiff, while either in a drunken stupor or asleep, was lying prostrate under some cars on the house track of the defendant, either between or beside the rails, or thereupon or partly so; that the conductor of the defendant was notified of the perilous position of the plaintiff, but, disregarding such notice, he signaled the train to proceed, whereby the plaintiff was injured as alleged.
Upon the pleadings and the evidence there is involved only the consideration and application of the "last clear chance" doctrine. Under this doctrine, as announced in Dubs v. Northern P. R. Co. recently decided, ante, 124, 171 N.W. 888, wilful negligence is the failure to use reasonable care after discovering a person to be in a place of peril.
To the jury there was submitted a special interrogatory as follows: "Did the defendant's conductor Eggleston know that the plaintiff was prostrate upon the rail of the house track of the defendant company at Wilton at the time he signaled the engineer to move the cars over the place where plaintiff was lying?"
This interrogatory was answered, "No."
The plaintiff contends that this interrogatory, so answered, is not inconsistent with the general verdict rendered. In effect, he contends that the general verdict is a finding upon every issuable fact submitted under the pleadings not inconsistent with the special finding; that there were other issuable facts presented upon the evidence and the pleadings for the application of the doctrine stated, upon which the general verdict may be upheld and therefore the trial court erred in its order.
The defendant contends, in effect, that the special finding of the jury is a finding that the conductor did not know or did not have notice of the fact that the plaintiff was in a position of peril. That in any event notice that a person was lying under some cars about to be moved is not notice that such person is in a drunken or helpless condition. That therefore the special finding being inconsistent with the general verdict, it controls.
These contentions present the only questions requiring our consideration upon this appeal.
In addition to the special interrogatory heretofore stated, another special interrogatory was submitted to the jury as follows: "Did the defendant's servants exercise ordinary care to avoid injuring the plaintiff at said time and place after the conductor Eggleston became aware that said plaintiff was lying under the cars?"
Under the instructions given, the jury were required to answer this interrogatory only in the event that they answered the former interrogatory in the affirmative.
These special interrogatories, accordingly, in accordance with the instructions given, were submitted upon the theory that a negative answer to the first interrogatory would imply a lack of knowledge of plaintiff's perilous position and therefore foreclose any application of the principle of the "last clear chance" doctrine.
The jury, however, after retirement and some consideration of the case, returned into open court for further instructions; then two jurors stated that the jury did not understand about the questions. The court then read to the jury a portion of the instructions relative to such interrogatories. The...
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