Hope v. Great Northern Railway Co.
| Citation | 122 N.W. 997,19 N.D. 438 |
| Decision Date | 11 October 1909 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Cavalier county; Fisk, J.
Action by H. J. Hope against the Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Dickson & Johnson, for appellant.
C. J Murphy, Fred S. Duggan, and Arthur LeSueur, for respondent.
The plaintiff sued to recover the value of horses and a wagon damaged in a collision with one of defendant's passenger trains at the city of Langdon, N.D., on the 5th day of December, 1902. The accident occurred at the crossing of the railroad tracks and Third street in said city, and about 100 feet west of the passenger depot. Third street, being the main street in the city of Langdon, runs north and south, and the railroad tracks cross it running northwesterly and southeasterly. The main railroad track is the most northerly of three parallel tracks. South of it, and about ten feet distant, is a passing track, and south of this passing track and about twenty-two feet distant from it is the elevator or side track. The depot is located on the north side of the main track, about 100 feet east from Third street crossing. Three grain elevators are on the south side of the tracks and east of Third street. On the day of the accident both the passing track and the side track were well filled with freight cars on both sides of the crossing. The cars on the east side of the crossing came up to about twenty-five or thirty feet of the crossing, most of the cars being on the passing track. There was also a string of cars on the side track along the elevators, and cars on both tracks west of the crossing, leaving a passageway of 60 feet or so. Plaintiff's man, B. Hope, drove the team and wagon in question to town that day with a load of wheat, and had to cross south over the tracks on the Third street crossing to get to the elevators. After waiting a few minutes to allow a freight train to move east by the crossing, he crossed to the south side, and took his load of grain to the most easterly elevator. After unloading the grain he drove eastward out of the elevator, then turned south and west and drove back along the route he had come toward the crossing with his team on the trot or gallop. The weather was pretty cold, the ground frozen hard, and the empty wagon with a double grain box made a great deal of noise. As he drove south of the elevators westward toward the crossing they obstructed his view of the tracks, and the spaces between the elevators that he passed were blocked by the freight cars, and by this freight train, which extended from the crossing some distance beyond the elevators, occupying the passing or center track. They completely obstructed Hope's view of the main track and the fireman's view of the highway. Hope drove down from the elevator platform and around back to the crossing over the first and second tracks, and into the side of the engine of the incoming passenger train on the third track, and from the time he left the elevator until the collision, his horses, then under control, were on the trot or gallop, and did not stop, except momentarily between the first and second tracks, where the driver pulled them in because, as he said, he "did not want to gallop over the tracks." John Lee, a section man, was shoveling snow off of the first track at the crossing when the horses came up to cross it. He testified he endeavored to stop the rig by waving his shovel at the driver and calling to him at the top of his voice. The driver saw him, but, according to his testimony, he did not see Lee wave his shovel or hear him call. The team almost came to a stop between the first and second tracks, and seemed to start forward again on the jump and continue until they struck the engine; they struck the left side of the engine and were badly injured; the driver escaped uninjured. The train which struck the horses was the regular daily passenger train going west; it was due at 12:30 and was about an hour late. The driver knew the time of the train's arrival, and also knew that sometimes it was late. According to the testimony of the train crew and other employes of defendant, the brakes had been applied some 900 feet east of the crossing, and the engineer blew the station whistle at the usual point, but did not see the horses until after the accident. The fireman, according to his testimony, was in his window ringing the bell and saw the horses as they emerged from between the cars on the passing track not more than 30 feet from the engine. He saw them strike the engine on the steam chest on the left side. There was a dent where they struck. The defendant's witnesses, Adams, Bissell, Hill, McNiell, Carlson, and Gunderson, testified that the engine whistle was blown as usual for the station, and the fireman was ringing the bell as the train came in. The driver and two other witnesses for plaintiff, then at the depot, did not hear those signals, but would not testify they were not given.
The case was tried by Hon. W. J. Kneeshaw, presiding judge, and a jury. The defendant at the close of the testimony moved for a directed verdict in its favor, which motion was denied. The case was submitted to the jury, who found a verdict for plaintiff. Thereafter the defendant moved the court for judgment notwithstanding the verdict, which motion was granted by Hon. C. J. Fisk, the judge before whom it was heard. From the judgment notwithstanding the verdict, this appeal was taken.
The point for consideration is whether, under the evidence plaintiff's driver was guilty of negligence proximately causing the injury, or of contributory negligence as a matter of law. We think the order of the court, granting judgment for defendant notwithstanding the verdict, was right. It conclusively appears that the driver was guilty of contributory negligence. He drove south over the crossing in question, with a load of wheat about 10 minutes before the accident, so that he knew the situation there, and the location of the tracks. After unloading the wheat he turned around and returned to the crossing, driving parallel to the tracks and south of them, not stopping once in this drive. There was a string of box cars on the center track and other cars on the elevator track, and three elevator buildings, all of which shut out the view of the main track from him, and the view of the driver and team from the engineer and fireman of the passenger train. The driver looked east as he was going down the elevator bridge and did not see any train, saw the cars on the elevator track and passing track. It was quite cold, and he was dressed warmly, had his cap down about the edge of his ears. The ground was frozen and the double box on the wagon was empty. The wagon made a noise on the hard road so that he did not hear the train or any noise except that made by the wagon. From the time he left the east elevator until the collision his team did not stop, except that, after he crossed the first track, he pulled up the lines and momentarily stopped them; he said because he "did not want to gallop over the track." He said: His idea in pulling them up was just so they would not go fast over the track. The first he saw of the passenger train or heard of it was when he saw the train and horses and smoke all at once; all went together. According to the testimony the train was running from 12 to 20 miles per hour. There was no point after he left the elevator at which it was possible for him to see the main track or the train coming on it from the east. According to his own testimony he paid no attention whatever to the approach of the train on the main track. At no time did he stop his horses or listen for the train. The noise of the moving train conveyed no warning to him. The noise of his wagon on the hard frozen ground...
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