Hager v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company, a Corp.
| Decision Date | 28 November 1925 |
| Citation | 206 N.W. 702,53 N.D. 452 |
| Court | North Dakota Supreme Court |
Rehearing denied December 21, 1925.
Appeal from the District Court of Ward County, Lowe, J.
Affirmed.
L. J Palda, Jr., C. D. Aaker, and C. E. Brace (John E. Palmer of counsel), for appellant.
A motion for dismissal and a motion for a directed verdict are both, in fact, demurrers to the evidence. They are, however not the same. Baily v. Davis (N.D.) 193 N.W. 658.
The plain purpose of this statute (Ch. 133, Laws of 1921) is to defer a ruling by the court on the sufficiency of the evidence until after a verdict has been returned. McLeod v. Simon (N.D.) 200 N.W. 790.
The conditions essential to competency of the evidence must be supplied. Cotton v. Willman Sioux Falls R. Co. 99 Minn. 366, 109 N.W. 835, 8 L.R.A.(N.S.) 643.
Where the only evidence on an issue is incompetent, direction of a verdict is proper. Wynn v. Coonen, 31 N.D. 160, 153 N.W. 980.
Where the exercise of ordinary precautions of looking and listening and making an intelligent use of one's faculties to inform himself as to the approach of a train is neglected and when the taking of such precautions would have avoided an accident, negligence is conclusively established, in the absence of conflict in the evidence on these subjects. It is a traveler's duty to look in both directions, at a crossing for trains. Sherlock v. Minneapolis, St. P. & S. Ste. M. R. Co. 24 N.D. 40, 138 N.W. 976.
The failure of one approaching a railroad crossing to see an approaching train which is in view when he looks along the track prior to crossing is such negligence that he cannot hold the railroad company liable in case he is injured by the train while on the crossing. Gehring v. Atlantic City R. Co. 75 N.J.L. 490, 68 A. 61, 14 L.R.A.(N.S.) 312.
Recovery cannot be had for death of a person killed in collision of his team with a train at a crossing, though signals were not given, where he, when at a point within 40 feet of the track could have heard or seen the train. Pittsburg, C. C. & St. L. R. Co. v. West, 34 Ind.App. 95, 69 N.E. 1017.
Negligence of the defendant's employees in failing to whistle or ring a bell at a crossing is no excuse for negligence on the part of the person about to cross in failing to use his senses. Carlson v. Chicago & N.W. R. Co. 96 Minn. 504, 105 N.W. 555, 4 L.R.A.(N.S.) 349, 113 Am. St. Rep. 655.
E. R. Sinkler and G. O. Brekke, for respondent.
It is only when the evidence is such that different minds cannot draw different conclusions, either as to the facts or the deductions to be drawn from the facts, that the question of negligence becomes a question of law. Daugherty v. Davis, 48 N.D. 890.
Contributory negligence as well as negligence of the defendant are questions for the jury in a case at law, unless the conceded facts from which the inference must be drawn admit of only one conclusion. If the facts relating to contributory negligence or to negligence of the defendant are such that different impartial minds might fairly draw different conclusions from them, they should be submitted to the jury and are only for the court when such that fair-minded men might draw only one conclusion from them. Pendroy v. Great Northern R. Co. 17 N.D. 433; Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. N. 367; Hollinshead v. Minneapolis, St. P. & S. Ste. M. R. Co. 20 N.D. 642.
A judgment notwithstanding the verdict will not be upheld under chapter 63, page 74, Laws 1901 on the grounds merely that there was a variance between the cause of action stated and the proof adduced. Welch v. Northern P. R. Co. 14 N.D. 19; Rieck v. Daigle, 17 N.D. 365, 12 L.R.A.(N.S.) 1022.
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...
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