Gast v. Northern Pacific Railway Company

• Decision Date: 28 May 1914
• Citation: 147 N.W. 793,28 N.D. 118
• Court: North Dakota Supreme Court

147 N.W. 793

28 N.D. 118

AUGUST GAST v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and Thomas Costello

Supreme Court of North Dakota

May 28, 1914

Appeal from District Court, Foster County, Coffey, J.

From a judgment in defendants' favor, plaintiff appeals.

Affirmed.

George H. Stillman and C. E. Scott, for appellant.

Where a verdict has been directed for defendant at the close of plaintiff's testimony, the court must construe the testimony most strongly in favor of the plaintiff, and assume as true every material fact which plaintiff's testimony tends to prove. Harris-Emery Co. v. Howerton, 154 Iowa 472, 134 N.W. 1068; Central Trust Co. v. Chicago, R I. & P. R. Co. 156 Iowa 104, 135 N.W. 721.

Contributory negligence of plaintiff no bar to a recovery for injuries which defendants could have avoided by the exercise of ordinary care and diligence. Bogan v. Carolina C. R Co. 55 L.R.A. 418, and note, 129 N.C. 154, 39 S.E. 808; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Lathrop v. Fargo-Moorhead Street R. Co. 23 N.D. 246, 136 N.W. 88; Welch v. Fargo & M. Street R. Co. 24 N.D. 463, 140 N.W. 680.

There being a dispute in the testimony as to certain necessary facts to establish negligence and contributory negligence the case should have been submitted to the jury. Bogan v Carolina C. R. Co. 129 N.C. 154, 55 L.R.A. 418, 39 S.E. 808 and cases cited; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Lathrop v. Fargo-Moorhead Street R. Co. 23 N.D. 246, 136 N.W. 88; Rober v. Northern P. R. Co. 25 N.D. 394, 142 N.W. 22.

The doctrine of last clear chance, being a rule of law, may be urged under a general allegation of negligence. Welch v. Fargo & M. Street R. Co. 24 N.D. 463, 140 N.W. 680.

Watson & Young and E. T. Commy, for respondents.

Where the undisputed testimony shows that plaintiff was guilty of contributory negligence as a matter of law, the case should be taken from the jury. Hope v. Great Northern R. Co. 19 N.D. 438, 122 N.W. 997; West v. Northern P. R. Co. 13 N.D. 221, 100 N.W. 254; Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 535; Garlich v. Northern P. R. Co. 67 C. C. A. 237, 131 F. 837; Davis v. Chicago R. I. & P. R. Co. 16 L.R.A.(N.S.) 424, 88 C. C. A. 488, 159 F. 10; Kelsay v. Missouri P. R. Co. 129 Mo. 362, 30 S.W. 339; Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 70 L.R.A. 681, 81 P. 801, 3 Ann. Cas. 700, 18 Am. Neg. Rep. 316.

The doctrine of last clear chance cannot be urged without any pleading to support it. Hanlon v. Missouri P. R. Co. 104 Mo. 381, 16 S.W. 235; Powers v. Des Moines City R. Co. Iowa , 115 N.W. 494; 6 Thomp. Neg. § 7466; Welch v. Fargo & M. Street R. Co. 24 N.D. 463, 140 N.W. 686; 29 Cyc. 584, PP II. and III., and authorities cited, 587; Hall v. Northern P. R. Co. 16 N.D. 60, 111 N.W. 609, 14 Ann. Cas. 960; Hart v. Northern P. R. Co. 196 F. 181.

The doctrine of last clear chance has no application to this case. 2 Moore, Facts, § 704; 1 Moore, Facts, §§ 397, 406.

FISK, J. BURKE, J., disqualified.

OPINION

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 conclusion of 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.

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 up town. 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 clevices, 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 fifteen 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 come 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 tongues 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 upon the engine, and it drug the pole team and wagon, and...