In an action to recover damages for injuries received in a collision with defendant's train at a public crossing, evidence examined, and held, that plaintiff was guilty of contributory negligence as a matter of law, and that the trial court did not err in so holding.
Notwithstanding his contributory negligence, plaintiff invokes the rule of discovered peril, or last clear chance. Held, that such rule is inapplicable, both under the complaint, which alleges merely specific acts of negligence consisting of excessive speed in approaching the crossing and failure to give suitable warnings, and under the proof, which conclusively shows that the engineer used reasonable care to avoid the accident upon discovering plaintiff's peril.
Where plaintiff, in his complaint, alleges merely specific acts of negligence on defendant's part, he will be restricted on the trial to proof of such acts. Had the complaint contained a general allegation of negligence in the operation of the train at the time in question, plaintiff might have relied upon the doctrine of discovered peril or last clear chance rule, if the facts had brought the case within such rule.
Appeal from District Court, Foster County; Coffey, Judge.
Action by August Gast against the Northern Pacific Railway Company, a corporation, and another, for personal injuries. From judgment for defendants, plaintiff appeals. Affirmed.George H. Stillman, of Carrington, and C. E. Scott, of McHenry, for appellant. Watson & Young, of Fargo, for respondents.
FISK, J.
Plaintiff seeks to recover damages for personal injuries received by him at a public crossing in the village of McHenry, in this state, and also for the loss of one horse and injuries to other horses, through the alleged negligence of the defendant. The answer puts in issue the allegation of the complaint as to the negligence of the defendant, and alleges that the accident was caused by plaintiff's own negligence. At the conclusionof the testimony the trial court directed a verdict in defendant's favor, and this appeal is from the judgment entered pursuant to the verdict thus directed.
The assignments of error all relate to the ruling of the court in directing such verdict.
[1] The accident happened about 2 o'clock p. m. on November 24, 1909. Plaintiff, a farmer living some few miles out of town, had hauled a load of grain to the Farmers' Elevator, and, after depositing his grain in the elevator, was in the act of attempting to cross defendant's tracks at such public crossing on his way to the center of the village, when the accident occurred. The highway at such crossing runs north and south, and is about 150 feet east of the railway depot. Plaintiff approached such crossing from the north, and his view to the east, the direction from which the defendant's passenger train came, was completely obstructed until he reached a point some 30 or 40 feet from the track. He was familiar with such crossing and knew the situation as to obstructions by buildings, etc., having used it many times during the preceding eight years. He was also familiar with the time such passenger train was due to arrive at McHenry, and had seen it come into town frequently prior thereto, and knew it was about due at the time he attempted to cross the tracks. He was driving a four-horse team, one team ahead of the other, and had a double wagon box or grain tank. The ground was frozen solid. We here quote from plaintiff's testimony as follows:
“I unloaded the wheat, and drove out, and tied my team on the north side of the elevator, some little distance from the elevator, and went in and got my checks for the grain, and, after I got my checks, drove west uptown. I had to go the length of the P. V. Elevator, and this elevator and a long addition, west, and the crossing. I could not say as to the exact distance. My best judgment is about 200 feet. While I was in the act of walking from the office to where the team was tied, I listened and heard no sound; I heard no train or any signals. As soon as I got on the first side track, that is, the side track north of the main track, I saw the danger I was in. I saw the train about 50 or 60 feet, or such a matter. After seeing the train, I pulled back the horses; was struck the instant I pulled. The leaders came quickly back. The pole team was coupled on loose to the end of the pole with two clevises, and the pulling of them back, the pole team pushed onto them with the pole, and they gave a lunge and jumped out of my control. I didn't know anything after that. I don't know whether the engine struck the team or not. I did not hear the bell on the engine ring. I became unconscious.”
He then narrates his injuries received through the accident, and also the extent of the damage done to his horses, harness, and wagon.
Plaintiff's witness Ole N. Eide testified:
“I was on the platform in front of the depot in McHenry at the time of this injury and accident. I saw the plaintiff, Gast. I think the train was early that day. I think it was 15 minutes until one of the trains came in; it was along in that neighborhood. I should judge it was nearly 100 feet from the depot to the crossing. I was about 100 feet west from the crossing. I was looking right at plaintiff coming across the tracks, and at the train. I think the train was between the Farmers' and Great Western Elevators when the team was coming pretty close to the crossing. From the Farmers' Elevator to the crossing, should judge it would be about 300 feet. I don't know the rate of speed the train was approaching. They were going pretty fast. I suppose the power was shut off some. When the team and train got together, it struck both the pole team and the leaders. Of course the leaders lunged against the end of the tongue, and the tongue broke, and both teams turned to run away and went down. They turned toward the depot. The nigh horse was killed, and I could not see the other horse. I should say the engine was driven 30 feet after it struck the team. I never measured it. About the length of the wagon and horses I should judge, or a few feet further. I did not hear the bell ring, nor whistle blow. I think the whistle blew; I would not be positive. It was awfully windy, storming, and cold. The wind was blowing northwest. I was standing there freezing on the platform. The wind was blowing a pretty good North Dakota wind.”
The witness Malmstad testified:
“I was on the depot platform in front of the Northern Pacific Depot in the village of McHenry at the time of the accident. I was on the east side of the platform, the extreme east end, about 140 feet from the P. V. Elevator. I saw the accident. I just went to look towards the Monarch Elevator and saw the team coming from the east going towards the crossing, and the train was right there, and I see they were going to collide together, and the minute the team got on the crossing the engine hit the team right there. The crossing is about 30 to 40 feet from the P. V. coal shed, as near as I could judge. As near as I can recall, the train was on this side of the coal shed when Gast's team swung into sight on the way past the tracks. I should judge the engineer could not see the team when they first came past the coal shed. The coal sheds would have obstructed the view of the engineer, but nothing after that. A man has to get past the coal shed before the engineer would be able to see him. It was somewhere around 40 feet from the coal shed to the crossing. After the team swung around the coal shed, the engine was on the far side of the coal shed, about 300 feet away. I did not hear or see the whistle or bell ring. I saw no effort to stop the train. I don't know how fast the train was going. The engine moved something over 60 feet after striking the team. When the engine struck the team-he had four horses, two in the lead and two on the pole-and as the team came from the north, going south, the lead team was partially across the track, and was cut off by the engine right between the leaders and the pole team, and either broke the tongue and chains, anyway the lead team went to the south of the cowcatcher on the engine and it caught the horses, and they got tangled up on the engine, and it drug the pole team and wagon, and the whole thing was drug right off, something over two rail lengths. The lead team broke away. The pole team stuck right to the engine.”
The witness Ruttle, among other things, testified:
“I saw the plaintiff on the day of this accident. He had been doing business with my elevator a few minutes before. Just a few minutes before the train came in I saw him. The train, when first I saw it, was going past the elevator. The train was directly south of the office (of the Farmers' Elevator). I was standing by the east window of the office. I do not know anything about the speed of the train; only an estimate is all. From my office directly across to the crossing would be about 300 feet. When I first saw the train, my best judgment is that it was going anywhere from 15 to 20 miles an hour. I do not recall whether it whistled or the bell rung at this time. I was attracted more by the rumbling which the rails made, and the building trembling. It jars the building. This office is, I should say, 300 feet from the crossing. I should say the train was going from 15 to 20 miles per hour. I did not see the plaintiff; he was hid by the elevator. I don't know where he was.”
The defendant Thomas Costello was called by plaintiff for cross-examination under the statute. He was the engineer on the passenger train, and had been in defendant's employ for about eight...
