Emery v. Northern Pacific Railroad Company

• Decision Date: 18 January 1967
• Docket Number: No. 18345.,18345.
• Citation: 370 F.2d 1009
• Parties: Alice EMERY, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Appellant, v. The NORTHERN PACIFIC RAILROAD COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

370 F.2d 1009 (1967)

Alice EMERY, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Appellant, v. The NORTHERN PACIFIC RAILROAD COMPANY et al., Appellees.

No. 18345.

United States Court of Appeals Eighth Circuit.

January 18, 1967.

Mart R. Vogel, Fargo, N. D., for appellant. Thomas A. Davies, Fargo, N. D., was with him on the brief.

E. T. Conmy, Jr., of Conmy, Conmy & Feste, Fargo, N. D., for appellees.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal by plaintiff, Alice Emery, from final judgment dismissing her complaint against the defendants, the Northern Pacific Railroad Company, William Norman, engineer, and Thomas McMahon, fireman, wherein she sought damages for the wrongful death of her husband, Bishop Emery, as a result of a collision at a railroad crossing at the outskirts of Grand Forks, North Dakota, between defendant's train and a Volkswagen bus owned and operated by Reverend Bigelow in which Bishop Emery was riding. Liability is predicated upon negligence. Jurisdiction, based upon diversity of citizenship and the requisite amount, is established. The judgment of dismissal was based upon a jury verdict in favor of all defendants.

Bishop Emery, head of the Episcopal church in North Dakota, was at the time of the collision occupying the right-hand front seat of Reverend Bigelow's Volkswagen. The vehicle was returning to Grand Forks from Walshville where Reverend Bigelow served as pastor and where Bishop Emery had made his annual inspection visit. Both had official engagements at Grand Forks later in the day. The Volkswagen, as it approached defendant's tracks at the outskirts of Grand Forks, was traveling in a southerly direction on a gravel road at a speed of forty-five miles per hour, within the prescribed speed limits. The train was approaching the intersection, traveling east, at a speed of forty-five miles per hour. The collision occurred at 1:55 p. m. on February 23, 1964. The weather was clear.

The accident crossing is protected by the usual crossbucks warning sign. No statutory train speed limit is in effect at the crossing. There is substantial evidence that the train crew gave the required statutory warning of its approach by sounding the horn. Other facts will be developed during the course of the opinion.

Plaintiff sets out eight specifications of negligence, including failure to maintain a proper lookout, excessive speed under existing circumstances, and last clear chance. Defendants, by motion for directed verdict, raised the issue of the sufficiency of the evidence to sustain any specifications of negligence and urge here that the simple solution of this case is to determine that the court erred in failing to sustain their motion upon such ground. No cross-appeal has been taken. The printed record does not set out the full evidence bearing upon the negligence issues.

While the evidence on negligence is not strong and might well be such as to lead the fact finder to a conclusion that no actual negligence proximately causing the accident has been established, we are not justified upon the record made to say as a matter of law that the defendants are entitled to a directed verdict upon the issue of defendants' negligence.

The only surviving witness able to give any substantial evidence on the circumstances leading up to the accident was Thomas McMahon. He was the fireman on the train and was situated on the side of the engine cab from which the Volkswagen was approaching. His testimony is rather ambiguous. He first observed the car when the train was about 1700 to 2000 feet from the intersection. The car was then about the same distance from the intersection and both car and train maintained a speed of about forty-five miles per hour up to the crash scene. McMahon first stated that the train was 500 to 600 feet from the crossing when he concluded that the car was not going to stop and that an emergency existed. Later he raised the distance to 700 to 800 feet, and subsequently when examined by his counsel he fixed the distance at 250 feet. When he discovered the emergency, he shouted to the engineer to put the train in emergency but the engineer did not hear him, so McMahon put on the emergency brake himself when the train was 150 to 200 feet from the crossing. Upon this conflicting testimony, it was for the jury to determine the point at which the fireman became aware of the emergency. The engineer testified that the train at the speed at which it was operating could be stopped in 800 to 900 feet by emergency braking. The train traveled 775 feet beyond the point of impact.

There is also conflicting testimony as to the obstructions and traffic at the collision crossing from which it might be possible for the jury to determine that the train was traveling at an excessive speed under existing circumstances.

It would also appear that the fireman's lookout for emergency situations will accomplish little if there is no effective means of conveying the information to the engineer.

Plaintiff's specifications of negligence, except the one relating to last clear chance, were submitted to the jury. No complaint either in the trial court or here is directed to the instructions submitting the negligence specifications to the jury. A detailed discussion of the facts relating to all such issues will serve no purpose.

Errors relied upon by the plaintiff for reversal are:

I. The Court erred in instructing the jury on contributory negligence.

II. The Court erred in instructing the jury that the deceased, Richard Emery, was under a continuing duty to exercise reasonable care for his own safety at all times.

III. The Court erred in instructing the jury on the doctrine of joint enterprise and in permitting the jury to find that the negligence of Mr. Bigelow, the driver of the car, was imputed to Bishop Emery, the passenger.

IV. The Court having instructed on contributory negligence and joint enterprise, erred in refusing to instruct on the last clear chance doctrine.

V. The Court, having instructed on joint enterprise and on imputation of negligence from driver to passenger, erred in refusing to instruct that the deceased driver, Mr. Bigelow, was entitled to the due care presumption.

VI. The Court erred in denying appellant\'s motion for a new trial.

Plaintiff's asserted errors are all directed at the court's instructions and such errors have been preserved for review by timely request for and exceptions to instructions. We now direct our attention to the errors asserted in the order in which they are above stated.

I.

The court submitted to the jury the issue raised by defendants' answer to the effect that the plaintiff could not recover if Bishop Emery himself was guilty of contributory negligence. Plaintiff by exception to instruction urges that there is no evidence to support a finding that the Bishop was negligent.

Contributory negligence is an affirmative defense and the burden of proving contributory negligence is upon the defendant. Olson v. Cass County Electric Co-op., Inc., N.D., 94 N.W.2d 506, 511. The standard to be applied in determining whether or not a party has been guilty of contributory negligence such as to preclude a recovery is whether his actions were those of an ordinary prudent person in the same circumstances and in the same position. Olson v. Cass County Electric Co-op., Inc., supra; Umland v. Frendberg, N.D., 63 N.W.2d 295, 299; Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774, 778.

While under North Dakota law a passenger is not charged...