Hager v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 21 December 1925
• Docket Number: No. 4934.,4934.
• Citation: 53 N.D. 452,206 N.W. 702
• Court: North Dakota Supreme Court
• Parties: HAGER v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

53 N.D. 452

206 N.W. 702

HAGER

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

No. 4934.

Supreme Court of North Dakota.

Nov. 28, 1925.

Rehearing Denied Dec. 21, 1925.

Syllabus by the Court.

In an action to recover damages resulting to the plaintiff from a collision at a railroad crossing, the evidence is examined, and it is held to present questions of fact for the jury upon negligence and contributory negligence.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Fred Hager against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order denying its motion for judgment notwithstanding verdict for plaintiff, and from the judgment, defendant appeals. Affirmed.L. J. Palda, Jr., C. D. Aaker and C. E. Brace, all of Minot (John E. Palmer, of Minneapolis, Minn., of counsel), for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BIRDZELL, J.

This is an appeal from an order denying the defendant's motion for judgment notwithstanding the verdict and from the judgment. The action is one to recover damages sustained by the plaintiff at a railroad crossing at the western limit of the city of Harvey. The judgment is for $350 and costs. On this appeal there is but a single question-that of the sufficiency of the evidence to support the judgment. It is elementary that upon a motion for judgment non obstante the evidence must be considered in the light most favorable to the party in whose favor the verdict was rendered. With reference to the matter involved, the plaintiff testified that on November 23, 1923, he was hauling a load of wheat to the city of Harvey. He was driving south upon a highway which intersected the railroad at about right angles on the western limit of the city. There was a grove lying just north of the railroad right of way and west of the road upon which the plaintiff was traveling. He had seen a train to the west before he reached the grove, and as he approached the crossing he observed a freight train about 140 or 150 steps east of the railway crossing; this train was standing still. He stopped his team when he was about 30 feet from the crossing; he looked and listened, but saw no train and heard no whistle or bell. He thought the train he had seen to the west had passed. But when he got close to the track it was icy and his horses started slipping and one pretty nearly fell down; he hauled the horses up by the lines and his wagon was stopped at the icy place “about two minutes or one minute,” and the train came along from the west and struck him, killing the horses, demolishing the wagon and throwing him in the air. On cross-examination he testified that the ice was clear across the road 10 feet from the track.

One Lesmeister, an uncle of the plaintiff, living about nine miles northwest of Harvey, testified that he was at the...