Felton v. Midland Cont'l R. R.

• Decision Date: 30 November 1915
• Citation: 155 N.W. 23,32 N.D. 223
• Parties: FELTON v. MIDLAND CONTINENTAL R. R.
• Court: North Dakota Supreme Court

32 N.D. 223

155 N.W. 23

FELTON

v.MIDLAND CONTINENTAL R. R.

Supreme Court of North Dakota.

Oct. 30, 1915.

Rehearing Denied Nov. 30, 1915.

Syllabus by the Court.

When the evidence in regard to contributory negligence is such that different minds may reasonably draw different conclusions, either as to the facts or the conclusions to be drawn from the facts, the question of contributory negligence is one of fact, to be determined by the jury.

Where the evidence is conflicting, or the proximate cause of an injury depends upon a state of facts from which different minds might reasonably draw different inferences, the question of proximate cause is one of fact for the jury.

As a general rule, a defense not raised in the trial court will not be considered by the appellate court.

The testimony given by a witness on a former trial, and which has been taken down in full by the official court stenographer, is admissible in evidence upon another trial of the same issues between the same parties, in a case wherein it is shown that the witness is a nonresident and not within the jurisdiction of the court.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by B. F. Felton against the Midland Continental Railroad, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.Buck & Jorgenson, of Jamestown, for appellant. S. E. Ellsworth, of Jamestown, for respondent.

CHRISTIANSON, J.

This is an action to recover damages for personal injuries, and the injury to plaintiff's automobile, alleged to have been caused by defendant's negligence in failing to construct and maintain a good and sufficient crossing over its line of railway at a point where such line of railway intersected one of the public highways in La Moure county, in this state. The cause was submitted to a jury, which returned a verdict in favor of the plaintiff for $700. Judgment was entered pursuant to such verdict, and this appeal is from the judgment.

Appellant assigns as error the trial court's rulings: (1) In denying defendant's motion for a directed verdict. (2) In admitting in evidence the testimony given by the witness Fees upon a former trial of this action. In his argument of these errors, appellant's counsel presents the following three propositions: (1) That the plaintiff was guilty of contributory negligence as a matter of law. (2) That the proximate cause of injury was not the negligence of the defendant in failing to construct and maintain a good and sufficient crossing, but the negligence of the township officials in failing to construct and maintain a roadway at the foot of the easterly approach of the crossing constructed by the defendant. (3) That the court erred in admitting in evidence the testimony given by the witness Fees upon the former trial of the action. We will consider these propositions in the order stated.

Plaintiff's cause of action is predicated upon defendant's failure to construct and maintain a good and sufficient crossing over its line of railway at a point where such railway intersected a public highway. Under the laws of this state it is provided:

“All railway companies operating a line of railway in this state shall build or cause to be built and kept in repair good and sufficient crossings over such line at all points where any public highway in use is now or may hereafter be intersected by the same.” Section 4686, Compiled Laws 1913.

“Such crossings shall be constructed as follows: 1. Of a grade of earth on one or both sides of the railroad track as the location may require, twenty feet in width, the middle point of which shall be as nearly as practicable at the middle point of the highway and such grade shall be of such slope as shall be necessary for the safety and convenience of the traveling public. 2. Plank shall be firmly spiked on and for the full length of the ties used in the roadbed of such railway where such crossing occurs and shall be laid not more than one inch apart except where the rail prevents; the plank next inside of the rail shall not be more than two and one-half inches from the inside surface of such rail and the plank used in the crossing shall not be less than three inches in thickness and so laid that the upper surface of the plank shall be on a level with the upper surface of the rail; such plank shall extend along the railway the entire width of the highway grade and in no case less than twenty feet.” Section 4687, Compiled Laws 1913.

“Every corporation constructing, owning or using a railroad shall restore every stream of water, water course, street, highway, plank road, toll or wagon road, turnpike or canal across, along or upon which such railroad may be constructed to its former state or to such condition as that its usefulness shall not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such railroad.” Section 4621, Compiled Laws 1913.

The complaint charged that defendant had failed to comply with the statute in the following particulars: (1) That the grade or approach was not 20 feet in width, but throughout was of a width not exceeding 12 feet; (2) that the slope on either side in the approach to the railroad track was not gradual and convenient, but steep and difficult of ascent; (3) that the grade was not constructed of firm and solid materials, that would bear throughout its passage a vehicle in ordinary use, for purposes of travel; (4) that the crossing was so constructed and the grade so steep that persons approaching from the west side were not sufficiently elevated when entering upon the approach to see over the embankment and know whether or not other persons in vehicles were approaching from the other side. The answer sets up two defenses. The first defense is in effect a general denial. The second defense is that the injuries if any, were caused by plaintiff's contributory negligence.

The crossing in question is between the stations of Millarton and Nortonville on the line of railway of the defendant railway company. And the evidence shows that at the time of the construction of such line of railway it intersected at right angles a public highway at the point where such crossing is constructed and the accident occurred; and in order to complete the construction of its line of railway it became necessary for the defendant at this point to raise above the level of the public highway an embankment of earth to the height of about 10 feet. The defendant railway company subsequently constructed a crossing at this point, but the witnesses all agreed that this crossing was not 20 feet in width. The various witnesses testified that its width was only about 17 feet up near the track, and, a short distance from the track, converged to a width of about 12 feet, and that the greater portion of the embankment was of the latter width. The witnesses all agreed that it was a steep and difficult crossing. On July 14, 1913, plaintiff, accompanied by his wife, was driving in an automobile, and approached this crossing from the west. He had never been over it before, and did not know anything about the approach on the east side of the track. It was apparent to plaintiff that the grade was steep and somewhat narrow, and that some work of construction or repair had recently been done upon it. Plaintiff's automobile was an Overland five-passenger car of standard width. On reaching the foot of the approach on the west side of the railroad, he was about 75 or 80 feet distant from the track; but, owing to the height of the embankment and the steepness of the descent, he could not see over the railroad track and down or along the approach on the east side. Just as plaintiff's automobile passed upon the railroad track, he for the first time had a view of the east approach, and observed that this was narrow and very steep, and that another automobile containing four persons had stopped at the foot of the approach, and that the driver of that car was engaged in cranking the automobile. The man thus engaged shouted, and plaintiff applied the brakes and stopped his car, the rear wheels of which were then on the track.

Plaintiff testified that about this time he observed a speeder or track velocipede about 40 rods away approaching the crossing upon the railroad track from the north or left side, and that he therefore concluded to get the auto off the track. Plaintiff further testified that the east approach was so steep that he did not dare to go over on the east side, for fear his automobile would slide down and collide with the automobile at the foot of the approach; that he therefore stated to the driver in the other...