Ekren v. Minneapolis, St. P. & S. S. M. R. Co.

• Decision Date: 19 November 1953
• Docket Number: No. 7360,7360
• Court: North Dakota Supreme Court
• Parties: EKREN v. MINNEAPOLIS, ST. P. & S. S. M. R. CO.

Page 193

61 N.W.2d 193

EKREN v. MINNEAPOLIS, ST. P. & S. S. M. R. CO.

No. 7360.

Supreme Court of North Dakota.

Nov. 19, 1953.

Rehearing Denied Dec. 4, 1953.

Syllabus by the Court.

1. The question of contributory negligence is ordinarily a question of fact to be determined by the jury; but when the evidence is such that only one inference can fairly and reasonably be drawn therefrom the question becomes one of law to be determined by the court.

2. The record in the instant case is examined and it is held, for reasons stated in the opinion, that the plaintiff was guilty of contributory negligence which was a proximate cause of the collision and injury on account of which he seeks a recovery.

Rittgers, Hjellum & Weiss, Jamestown, J. F. X. Conmy, Fargo, for plaintiff and respondent.

Aylmer & Butts, Jamestown, Conmy & Conmy, Fargo, for defendant and appellant.

SATHRE, Judge.

The plaintiff brings this action against the defendant for damages for personal injury and property damages resulting from a collision between his car and the defendant's train on a crossing at Kensal, Stutsman County, North Dakota. He alleges in his complaint that the accident was due to the negligence of the defendant in failing to give proper signals when approaching the crossing and for failing to maintain proper safeguards at said crossing. In its answer the defendant denies any negligence on its part and alleges that the accident and damages to the plaintiff were due to plaintiff's own contributory negligence. The case was tried to the court and a jury and the issues raised by the pleadings were submitted to the jury and a verdict was returned in favor of the plaintiff upon which verdict judgment was entered. From this judgment defendant has appealed. At the close of plaintiff's case the defendant made a motion for a directed verdict in its favor upon the grounds that there is no testimony in the record showing any negligence on the part of the defendant proximately causing the plaintiff's injuries and losses if any; and that the undisputed evidence shows the plaintiff to have been guilty of contributory negligence as a matter of law which contributory negligence was a proximate cause of his losses and injuries. Motion was also made for dismissal of the action upon the same grounds. Both motions were denied by the trial court. At the close of the case when both parties had rested the defendant made a motion for a directed verdict upon the same grounds stated in the motion for a judgment of dismissal at the close of the plaintiff's case. The motion was denied and the case was submitted to the jury. After the verdict the defendant made a motion for judgment notwithstanding the verdict upon the grounds and for the same reason as stated in the previous motions, which motion was denied by the trial court. The defendant appealed from the judgment assigning numerous errors all of which rest upon the contention that there is no evidence in the case establishing negligence on the part of the defendant and that the evidence shows conclusively that the plaintiff was guilty of contributory negligence as a matter of law, and that his injuries and damages if any were the result of his own contributory negligence.

The defendant on this appeal has challenged the sufficiency of the evidence to sustain the verdict. It will be necessary therefore in considering the evidence, to take to view most favorable to the plaintiff. The defendant has pleaded contributory negligence and therefore the burden is upon the defendant to establish this defense by a preponderance of the evidence. If the defendant was negligent in the respects charged, the verdict must stand, unless it is established that the collision was due to the contributory negligence of the plaintiff. It is well settled that the question of contributory negligence is one of fact for the jury and becomes a question of law only when reasonable men can draw but one conclusion from the evidence. Martin v. Parkins, 55 N.D. 339, 213 N.W. 574, and cases there cited.

There is a sharp conflict in the evidence as to whether or not the defendant's train gave proper warning in approaching the crossing in question by sounding the whistle and ringing the bell. The witnesses for the plaintiff all testified that the train did not sound the whistle nor ring the bell. Many of them said that they were in their usual places of business at the time of the accident and that ordinarily they could hear the whistle and the ringing of the bell of trains coming into Kensal. The train crew, however, that is, the engineer, fireman and flagman all testified that they heard the whistle and that the bell was ringing as usual at all of the crossings and particularly at the crossing in Kensal where the collision occurred. However for the purpose of this opinion we shall assume that the defendants were negligent in failing to sound the whistle and to ring the bell in approaching this crossing. On that theory we will proceed to examine the record in order to ascertain whether it is possible to say, viewing the evidence in the light most favorable to the plaintiff, that he was negligent as a matter of law.

There is no dispute as to the physical facts in this case. The village of Kensal where the accident occurred has a population of 375 to 400 people. The Soo line railroad runs through the village in an easterly and westerly direction. There are three tracks, the service or house track to the south, next the passing track and lastly the main track. The accident occurred shortly before nine o'clock on the morning of November 12th at what is known as the east crossing which is approximately 626 feet east of the depot in Kensal. It was a cold morning and the sky was overcast but the visibility was good. The highway upon which the plaintiff was driving is near the south edge of Kensal and turns north and crosses the east crossing at practically right angles. There were box cars on the service or house track on each side of this crossing. There were also grain elevators and other places of business such as coal sheds and an oil station located along the south side of the service track. The freight cars on each side of the crossing and the elevators and other buildings obstructed the view of anyone approaching the crossing from the south. Neither the passing track nor the main track could be seen from the highway immediately south of the service track. The terrain to the east and west of the crossing was practically level or flat and there were no natural obstructions to interfere with a person's view east and west after crossing the service track. The plaintiff was taking his two boys and a neighbor boy to school on the morning of the accident. When he was from 25 to 30 feet south from the first or service track he stopped. However, as has been pointed out, at the place where he stopped his car his view was entirely obstructed so that he could not see either the service track or the main track or any part of the area east or west of these two tracks. After he stopped 25 or 30 feet to the south of the service track he proceeded to cross all three tracks without stopping. He stated that he was traveling at a speed of from 6 to 8 miles per hour; that when he started to cross the service track he intended to cross all three tracks without stopping, notwithstanding the fact that at the place where he did stop his view was obstructed both east and west, making it impossible for him to see whether or not there were any trains approaching on the passing track or on the main track east or west of the crossing. He said he looked to the west to see if there was a switch engine near the depot which is located some 626 feet west of the railroad crossing, and that he did not look east because, as he said, he did not have time; that he proceeded to cross the passing track and main track without intending to stop, and then the collision occurred.

The distance from the north rail of the house or service track to the south rail of the main track is 43 feet 3 1/2 inches. The exact distances between the house track and the passing track and between the passing track and the main track are not shown in the record, but the plaintiff testified that he paced the distances and that the distance between the house track and the passing track was 9 paces and the distance between the passing track and the main track was 6 paces. He estimated that his paces were about 3 feet which would make the distance between the house track and the passing track approximately 27 feet and the distance between the passing track and the main track about 18 feet. There was introduced in evidence two plats, defendants exhibits C and D, prepared by Martin Hagen an assistant engineer, employed by the engineering department of the defendant. These plats were drawn to scale and show the crossing where the accident occurred and the surrounding areas east and west of the crossing. Exhibit C, is drawn to the scale of 1 inch to 100 feet and shows the service track, the passing track and the main track. It also shows the elevators and other business places south of the service track and east and west of the crossing; also the freight cars on the service track east and west of the crossing. Exhibit D, a smaller plat is drawn to the scale of 1 inch to 20 feet. It shows the highway crossing where the accident occurred, and the 3 tracks more in detail than defendants exhibit C. It shows also the planking of the 3 tracks, the box cars and the elevators on the west and east sides of the crossing. It also shows the crossing signs or cross-bucks to the north and west of the main line and to the south and east of the house tracks; there is some dispute in the testimony as to the width of the opening between the freight cars on the crossing. The plaintiff testified that it was from 15 to 16 feet but that he could nicely pass through. One of plaintiff's witnesses testified that he paced...