Hollinshead v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
| Decision Date | 17 September 1910 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes county; Hon. Edward T. Burke, J.
Action to recover for personal injuries inflicted by defendant's train at a public crossing over defendant's railway track. From a judgment in plaintiff's favor and from an order denying defendant's motion for a new trial defendant appeals.
Affirmed.
Lee Combs, John L. Erdall (Alfred H. Bright, of counsel), for appellant.
Herman Winterer and David S. Ritchie, for respondent.
Action to recover for personal injuries occasioned by a collision with defendant's train at a public crossing. Plaintiff had judgment in the court below and defendant appeals both from the judgment and from the order denying its motion for a new trial.
The assignments of error are all grouped under two subdivisions in appellant's brief, its contentions, briefly stated being, first, that the plaintiff, as a matter of law, was guilty of contributory negligence in approaching and driving upon the crossing in question at the time of the accident precluding a recovery; and second, that the verdict is excessive and that the court erred in denying defendant's motion for a new trial for that reason.
The rules governing the courts in determining the question of contributory negligence in cases of this character are too well settled to require restatement at this time. Counsel do not disagree as to the rules of law applicable, and therefore we deem it necessary merely to call attention to the recent case of Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531, and cases therein cited, for a full and, as we believe, accurate statement of the law upon this subject. In this, as in most cases of this nature, the chief controversy between counsel arises over the application of such rules to the particular facts involved. It becomes necessary, therefore, to review the facts in the case at bar, as far as material, and to those facts apply such settled rules, stating our conclusions therefrom. In narrating the facts, those regarding which there is a substantial conflict will and properly should be stated in the light most favorable to plaintiff.
With these preliminary observations, we proceed to a consideration of the facts.
At the time of the accident, being at about 10 o'clock A. M. of June 9, 1908, plaintiff, a man eighty-two years of age, was en route from Valley City, this state, to his farm located about eight miles southeast of said place. He was alone and was driving a team of horses hitched to a light platform buggy. The accident happened at a public crossing over defendant's railroad track some few miles from Valley City, over which crossing plaintiff was required to pass and had passed on many previous occasions in going to and returning from his farm. At this crossing the highway runs in an easterly or northeasterly direction and the defendant's railroad track runs from the southeast toward the northwest. In approaching the crossing from the west, and just before reaching a point 125 feet from the railroad track, there is a dip or depression in the highway, and from a point 125 feet from the crossing the highway is slightly down grade until it reaches such crossing. For a considerable distance southeast from the crossing, defendant's roadbed lies in a cut several feet deep, and on the westerly side of such cut there were four stacks or piles of snow fences placed in such a position that plaintiff's view of defendant's track was materially obstructed while he was driving along the highway from a point about 125 feet southwest of the crossing until he reached a point about 25 feet therefrom. Plaintiff testified that his team was walking when he reached the rise in the highway 125 feet from the crossing, and that at that place he took the precaution to look both ways...
To continue reading
Request your trial