Edwards v. Great Northern Railway Co.

• Decision Date: 15 March 1919
• Citation: 171 N.W. 873,42 N.D. 154
• Court: North Dakota Supreme Court

171 N.W. 873

42 N.D. 154

HAROLD EDWARDS, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, and Bruce R. Hill, Appellants

Supreme Court of North Dakota

March 15, 1919

Rehearing denied April 10, 1919.

Appeal from the District Court of Ward County, Honorable K. E Leighton, Judge.

Affirmed.

Judgment affirmed, with statutory costs.

Murphy & Toner, for appellants.

The ordinary precaution required of one approaching a railroad crossing, when he has no knowledge of the close proximity of the train, is that he look and listen, and make a diligent use of all his faculties to inform himself and avoid collision. West v. R. Co. 13 N.D. 230; Chicago R. Co. v. Houston, 95 U.S. 702; Sherlock v Minnesota St. P. & S. Ste. M. R. Co. 24 N.D. 40; Haugo v. Great Northern R. Co. 27 N.D. 368; Gast v. N. P. R. Co. 28 N.D. 118, 147 N.W. 793; Christofferson v. Minnesota St. P. & S. Ste. M. R. Co. 28 N.D. 146.

Where the relations between two parties are analogous to that of a principal and agent or principal and surety, or master and servant, the rule is that a judgment in favor of either in an action brought by a third party rendered upon a ground equally applicable to both should be accepted as conclusive against the plaintiff's right of action. Featherston v. Newburg & C. Turnp. R. Co. 71 Hun, 109, 24 N.Y.S. 603; Warfield v. Davis, 14 B. Mon. 40; Kansas v. Mitchner, 85 Mo.App. 36; Castle v. Noyes, 14 N.Y. 329; Emma Silver Min. Co. v. Emma Silver Min. Co. 7 F. 401; Doremus v. Root & O. R. & Nav. Co. (Wash.) 63 P. 572; King v. Chase, 15 N.H. 9, 41 Am. Dec. 675; Ransom v. Pierre, 101 F. 665; Hill v. Bain, 15 R. I. 75, 23 A. 44; State v. Coste, 36 Mo. 437, 88 Am. Dec. 148; McKenzie v. Baltimore etc. R. Co. 28 Md. 161; Lyons v. Stanford, 42 N.J.Eq. 411, 7 A. 869; Gallagher v. Moundsville, 34 W.Va. 730, 12 S.E. 859; Faust v. Baumgartner, 113 Ind. 139, 15 N.E. 337; Schweickhardt v. St. Louis, 2 Mo.App. 571; Mcginnis v. Chicago R. Co. 200 Mo. 359, 98 S.W. 590; Bradley v. Rosenthal (Cal.) 97 P. 875; Thompson v. Southern P. R. Co. 161 P. 21; Portland Gold Min. Co. v. Strattons Independence, 158 F. 68; Young v. Rohrbough (Neb.) 129 N.W. 167; O'Brien v. American Casualty Co. (Wash.) 109 P. 52; Hayes v. Chicago etc. R. Co. 218 Ill. 417, 73 N.E. 1003; Indiana, N. & T. Co. v. Lippencott Co. 165 Ind. 365, 75 N.E. 649; Stevick v. N. P. R. Co. 81 P. 999; Morris v. N.W. etc. Co. 152 P. 402; Sipes v. Puget Sound, etc. R. Co. 102 P. 1057; Chicago etc. R. Co. v. McManigal, 103 N.W. 305; Muntz v. Algiers, etc. R. Co. 40 So. 688; Southern R. Co. v. Harbin, 135 Ga. 125, 68 S.E. 1103.

As a matter of law the verdict returned in this case and the subsequent judgment completely acquits the individual defendant of negligence. Howard v. Johnson, 18 S.E. 132; Kinkler v. Junica, 19 S.W. 359; Gulf etc. v. James, 10 S.W. 744; Jones v. Gimmet, 4 W.Va. 104; Westfield v. Abernathy, 35 N.E. 399; Lawson v. Robinson, 75 P. 1012; Doremus v. Root, 63 P. 572.

The conflict in the evidence that prohibits the court from interfering with the verdict of the jury on a question of fact should be substantial, and not an illusionary conflict. Fuller v. Elevator Co. 2 N.D. 220; Duncan v. Great Northern R. Co. 17 N.D. 618.

The bailiff in charge of the jury was guilty of conduct prejudicial to the rights of the defendant in that he told the jury without consulting the court, that the court would not accept a disagreement. Cole v. Swan, 4 G. Greene, 32; Obear v. Gray, 68 Ga. 182; Green v. Telfar, 11 Ohio St. 61; Flater v. Mead, 53 Ohio St. 67; Terra Haute v. Saxony, 1 Ind. 19; Taylor v. Jones, 2 Head, 561; Chesapeake v. Barlow, 83 Tenn. 537; Physioc v. Shay, 75 Ga. 466; Gholston v. Gholston, 31 Ga. 625; Brown v. State (Wis.) 106 N.W. 536; Hudson v. State (Wis.) 86 N.W. 596; State v. Langford, 14 So. 182; State v. Murphy, 17 N.D. 50.

F. B. Lambert, for respondent.

The rule is that where fair-minded men might honestly differ under all the facts as disclosed by the evidence, the question is one for the jury. Berry, Automobiles, § 160; Pendroy v. Great Northern, 17 N.D. 433, 117 N.W. 534; Coulter v. Great Northern, 5 N.D. 584, 67 N.W. 1046; Chambers v. Soo, 37 N.D. 378; Peterson v. Fargo-Moorehead St. R. Co. 37 N.D. 441; Zink v. Lahart, 16 N.D. 56, 110 N.W. 931; Borough v. Soo (Iowa) 167 N.W. 177.

An affidavit filed in a motion for new trial by an attorney in the case, based entirely upon alleged statements of jurors to affiant, was hearsay, and not entitled to consideration. Johnson v. Seel, 26 N.D. 299; Waltham Piano Co. v. Freeman, 159 Iowa 567, 141 N.W. 403; 2 Thomp. Trials, § 2603; 2 Jones, Ev. p. 644, and cases cited.

That the bailiff remarked to members of the jury that if they did not agree they would be kept from Saturday to Monday,--held not misconduct warranting new trial. Becker v. Churdan (Iowa) 157 N.W. 221; 17 Am. & Eng. Enc. Law, 2d ed. 1204; Wiggins v. Downer, 67 How. Pr. 65; Melling v. Industrial Mfg. Co. 78 Ga. 260.

Misconduct or irregularity on the part of the jurors, if not induced by the prevailing party, will not ordinarily be ground for setting aside the verdict, unless it was calculated to prejudice the unsuccessful party. 17 Am. & Eng. Enc. Law, 2d ed. 1204; Wiggins v. Downer, 67 How. Pr. 65; Nelling v. Industrial Mfg. Co. 78 Ga. 260.

Although the plaintiff has negligently placed himself in a dangerous position, he can recover if the defendant, after knowing of the plaintiff's danger, could have avoided the injury by the exercise of ordinary care. Berry, Automobiles, § 156; Green v. Los Angeles Terminal R. Co. 143 Cal. 40, 101 Am. St. Rep. 68, 76 P. 719; Denver & R. G. R. Co. v. Buffehr, 30 Colo. 27, 37, 69 P. 582; Tully v. Philadelphia, W. & B. R. Co. 3 Penn. (Del.) 464, 50 A. 95; Hawley v. Columbia R. Co. 25 App. D. C. 5; Illinois Central R. Co. v. Hutchinson, 47 Ill. 408; Indianapolis & C. R. Co. v. McClure, 26 Ind. 374, 86 Am. Dec. 467; Keefe v. Chicago & N.W. R. Co. 92 Iowa 182, 54 Am. St. Rep. 542, 60 N.W. 503; Baltimore City Pass. R. Co. v. Cooney, 87 Md. 267, 39 A. 859; Wise v. St. Louis Transit Co. 198 Mo. 558, 95 S.W. 898; Rapp v. St. Louis Transit Co. 190 Mo. 161, 88 S.W. 865; Mapes v. Union R. Co. 56 A.D. 508, 513, 67 N.Y.S. 358; Deans v. Wilmington & W. R. Co. 107 N.C. 689; Kerwhacker v. Cleveland, C. & C. R. Co. 3 Ohio St. 172, 62 Am. Dec. 246; Texas & N. O. R. Co. v. Brown, 14 Tex. Civ. App. 699; Norfolk & W. R. Co. v. Spencer, 104 Va. 659, 52 S.E. 310; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679; Inland & S. C. Co. v. Tolson, 139 U.S. 551, 558; Garside v. New York Transp. Co. 146 F. 588, 595, affirmed in 157 F. 521.

Under the doctrine of "the last clear chance" the defendant should have avoided the accident. Acton v. Fargo & M. St. R. Co. 20 N.D. 434, 129 N.W. 225.

In order that the estoppel of a judgment may become operative and effective, a party claiming its benefits must plead the adjudication in bar of a subsequent action and on the trial establish it by competent proof, and a failure to do either will be deemed a waiver of the rights depending on such estoppel. Borden v. Graves, 20 N.D. 225, 127 N.W. 104; 2 Van Fleet, Former Adjudication, § 685; Union v. Memphis, 111 F. 561; McLean v. Baldwin, 69 P. 259; Donaldson v. Rogers, 2 Bibb, 57; Howks v. Truesdell, 99 Mass. 557; McReady v. Rogers, 1 Neb. 124; Re Herbert, 57 Cal. 257.

A verdict without judgment cannot be given in evidence. Donaldson v. Rogers, 2 Bibb, 57; Howks v. Truesdell, 99 Mass. 557; McReady v. Rogers, 1 Neb. 124; Re Herbert, supra.

A master may sometimes have a right of action against a servant because of whose negligent act he has been subjected to liability to a third person. This is not the case where the master has concurred with the servant in creating the liability. Central R. Co. v. Macon (Ga.) 71 S.E. 1076; Cincinnati R. Co. v. Louisville & N. R. Co. (Ky.) 30 S.W. 408; 9 Cyc. 805; Southwestern v. Krause (Tex.) 92 S.W. 431; Deleplain v. Kansas City (Mo.) 83 S.W. 72.

It was the duty of the railroad company to keep a proper lookout for themselves at a highway crossing which is within the limits of a city. Rober v. N. P. R. Co. 25 N.D. 394, 142 N.W. 22; Stone v. N. P. R. Co. 29 N.D. 480, 151 N.W. 36; Severtson v. N. P. R. Co. 32 N.D. 200, 155 N.W. 11; Pendroy v. G. N. R. Co. 17 N.D. 433, 117 N.W. 531; Kunkel v. Soo R. Co. 18 N.D. 367, 121 N.W. 830.

GRACE, J. ROBINSON, J., dissenting.

OPINION

GRACE, J.

This appeal is from a judgment in plaintiff's favor for $ 8,000, and from an order of the court denying defendant's motion for a judgment notwithstanding the verdict or in the alternative for a new trial.

The complaint is in the usual form. Among other matters, it charges Bruce R. Hill was the servant, employee, and agent of the Great Northern Railway Company, and engaged as an engineer in the running and operating of locomotive engines of the railway company; that he was in charge and control of the operating of a certain switch engine and the cars thereto attached which caused the injuries to the plaintiff; that plaintiff was driving and traveling a Ford automobile on Third street, N.E., in the city of Minot, North Dakota, a public street, and while in the act of crossing the railway track of the defendant, at said point, he was struck by the defendant railway company's locomotive while it was being run and operated under instructions from and for the use and benefit of the Great Northern Railway Company by the defendant Hill, as the agent, employee, and servant of the railway company, with such force that the automobile was completely demolished and the plaintiff thrown with great force and violence from the automobile to the ground; was pushed and dragged by said locomotive over the track and railway bridge of the Mouse river,...