Haugo v. Great N. Ry. Co.

• Decision Date: 06 March 1914
• Citation: 145 N.W. 1053,27 N.D. 268
• Parties: HAUGO v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

27 N.D. 268

145 N.W. 1053

HAUGO

v.GREAT NORTHERN RY. CO.

Supreme Court of North Dakota.

March 6, 1914.

Syllabus by the Court.

In order to constitute contributory negligence as a matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom. Evidence examined, and held, that plaintiff was guilty of such negligence in the case at bar that he cannot recover.

Appeal from District Court, Bottineau County; Burr, Judge.

Action by Ole Haugo against the Great Northern Railway Company. From judgment for plaintiff, defendant appeals. Reversed.Murphy & Duggan, of Grand Forks, for appellant. Weeks & Moum, of Bottineau, for respondent.

BURKE, J.

Plaintiff was injured in a collision with defendant's train, at a grade crossing within the city limits of Bottineau, N. D. The road upon which he had traveled to reach the city runs due south, and the street upon which he was traveling at the time of the injury coincides with the said section line. The defendant's train approached from a direction which may be designated as northwest by north. Thus plaintiff was driving into the town from due north, and the train was approaching the town from a direction halfway between north and northwest. The depot at which the train would stop was situated about 400 feet to the south and beyond the crossing aforesaid. There was also a side track parallel with, and 50 feet north of, the main track at the place where the street intersected the right of way. From the testimony and from a photograph it is apparent that the wagon road makes a slight turn at the crossing but does not cross the track at right angles. From careful calculation we have reached the conclusion that the distance between the centers of the main and side tracks at the crossing is in the neighborhood of 75 feet. At the time of the accident there was a string of box cars standing upon the side track immediately west of the crossing, which would tend to obstruct plaintiff's view of the main track as he approached from the north. The accident happened upon the 21st day of December, 1910, about 1:30 p. m., and the testimony shows that the weather was foggy and thick, but not so dense but that a train might be seen for at least a quarter of a mile. The train consisted of seven freight cars and an engine, and plaintiff was driving a team of horses drawing a sleigh upon which he had about a cord of wood. Plaintiff drove over the main track ahead of the train, but the rear end of his load was struck by the engine and upset. He claimed injury to the sled and harness and to his person. The jury awarded a verdict in the sum of $450. Defendant and appellant insists that plaintiff was guilty of contributory negligence which precludes his recovery. The question is decisive of the case and will be the only one considered.

1. The law relative to contributory negligence in crossing accidents is well settled in this country at large and in this state. The authorities are agreed that, in order to constitute contributory negligence as to matter of law, the facts and circumstances must be such that no other inference can fairly and reasonably be drawn therefrom. See valuable case note at page 963 of 11 L. R. A. (N. S.) where the authorities are collected and reviewed; 29 Cyc. 631, and cases cited; Bostwick v. Railway, 2 N. D. 440, 51 N. W. 781;West v. N. P. Ry., 13 N. D. 221, 100 N. W. 254;Carr v. Soo Ry., 16 N. D. 217, 112 N. W. 972;Pendroy v. Grt. N. Ry., 17 N. D. 433, 117 N. W. 531;Kunkel v. Soo Ry., 18 N. D. 367, 121 N. W. 830;Hope v. G. N. Ry., 19 N. D. 438, 122 N. W. 997;Hollinshead v. Soo Ry., 20 N. D. 642, 127 N. W. 993;Sherlock v. Soo Ry., 24 N. D. 40, 138 N. W. 976. In the West Case it is said: “The ordinary precaution required of one approaching a railroad crossing, when he has no knowledge of the close proximity of the train, is that he look and listen and make a diligent use of all his faculties to inform himself and avoid collision. Where a view of the track in either direction is obstructed before reaching the point of danger, extra precaution is required to ascertain danger through the sense of hearing. When the exercise of these ordinary precautions would have avoided the accident, negligence is conclusively established.” In the Pendroy Case it is said: “A person about to cross a track must bear in mind the dangers attendant upon crossing, and vigilantly use his senses of sight and hearing in the endeavor to avoid injury.” In the same case it is said: “Traveler * * * is rigidly required to do all that care and prudence would dictate to avoid injury, and, the greater the danger, the greater the care must be exercised to avoid it. And where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, buildings, or other obstructions and hindrances, it is more than usually difficult to see or hear, greater precaution must be taken to avoid injury than would otherwise be necessary; and, under such circumstances, there can be...