Crowson v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 03 March 1917
• Citation: 161 N.W. 725,36 N.D. 100
• Court: North Dakota Supreme Court
• Parties: CROWSON v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

36 N.D. 100

161 N.W. 725

CROWSON

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Dec. 12, 1916.

On Petition for Rehearing, March 3, 1917.

Syllabus by the Court.

In an action to recover damages for injuries received at a railroad crossing, it is held that the trial court was justified in dismissing the action on account of the contributory negligence of the plaintiff.

Appeal from District Court, Ward County; K. E. Leighton, Judge.

Action by Charles W. Crowson against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.Bradford & Nash, of Minot, for appellant. Palda, Aaker & Greene, of Minot (Alfred H. Bright and John L. Erdall, both of Minneapolis, Minn., of counsel), for respondent.

BRUCE, J.

This is an action to recover damages for injuries sustained in a crossing accident. The accident occurred at Burlington, N. D. The main line of the defendant railway company ran east and west. Forty-three feet 6 inches south of the main track was a side track. On this side track was a string of box cars, the westernly one of which projected some 22 feet into the street on which plaintiff was driving, and the easterly one of which was probably some quarter of a mile to the east. Though the westerly car projected into the street, it appears that there was plenty of room to keep on the 18 or 20 foot crossing, which was constructed by the railway company and provided for by statute, and to pass the same, all that was necessary being to turn slightly to the west and “hook around” the car. The plaintiff was well acquainted with the crossing, it having been his custom for some time to pass over the same about twice a week. At the time of the accident he was driving a four-horse team attached to a heavy farm wagon with a grain tank in which he had been hauling wheat. One team was hitched to the pole of the wagon, while the other was ahead of it and attached to the wagon and drawing it by means of a chain attached to the pole and with a separate whiffletree. This left the lead team about 18 inches ahead of the noses of the pole team, and the rumps of the pole team were about 2 1/2 feet from the front of the grain tank. The street was 63 feet wide. The wind was blowing from the northwest. Plaintiff had crossed the track and unloaded his grain, and then had driven to a store some 125 feet south of the side track. He then started on his return journey. From this store he had a view of the track for some mile and a half beyond the cars on the side track and the elevator. The cars, however, on the side track, extended from the crossing for a distance of about a quarter of a mile, and for this distance the train could not be seen. He saw no sign of a train and started towards the crossing. He knew that a train was due at about this time. He knew that trains passed constantly up and down the track. He did not know whether the train that was due at that time had passed or not. When he was approaching the track he looked to see if any smoke could be seen above the line of box cars, and saw none. He heard no bell or whistle. The train was running at a speed of about 20 to 25 miles an hour, and he himself was traveling at a rate of about 4 or 4 1/2 miles an hour. This shows conclusively that at the time he left the store he either must have seen the train, or it was behind the line of box cars, as it only took plaintiff about three-fourths of a minute to reach the track, and it would have been impossible for the train,...