Johnson v. Chicago & N. W. Ry. Co.
| Decision Date | 06 May 1946 |
| Docket Number | 8803. |
| Parties | JOHNSON v. CHICAGO & NORTHWESTERN RY. CO. et al. |
| Court | South Dakota Supreme Court |
Rehearing Denied June 8, 1946.
Louis H. Smith, of Sioux Falls, for appellant.
Churchill & Churchill, of Huron, for respondents.
This appeal involves a railway crossing accident which occurred near the town of Unityville, in McCook County, on August 1, 1941; and which accident resulted in the death of Dean Johnson, a young man, 21 years of age. The action was brought by plaintiff, in her capacity as administratrix of the estate of said deceased. Appellant claims substantial damages occasioned by the death of the said Dean Johnson; and bases her claim upon alleged negligence on the part of the respondent railway company.
At the close of all the evidence and after both sides had rested, the trial court directed a verdict in favor of the respondents. Such ruling is grounded upon the theory that the said deceased was, as a matter of law, guilty of contributory negligence which barred any recovery. Judgment was entered accordingly. The appellant has appealed from such judgment and assigns but two alleged errors:
1. That the trial court erred in sustaining the motion for a directed verdict.
2. The court erred in entering judgment for defendants. The record discloses a decided conflict in the evidence. We are however, concerned with a motion for a directed verdict made after both sides had presented their evidence. This court is dealing with a motion for a directed verdict made by defendant at the close of plaintiff's evidence and renewed after both sides had rested, in the case of Clinkscales v. Wisconsin Granite Co., 38 S.D. 205, 160 N.W 843, 845, stated the rule to be applied as follows:
The above is supported by the following cases: Forbes State Bank v Higgins et al., 58 S.D. 497, 237 N.W. 735; Woonsocket State Bank v. Parsons, 52 S.D. 534, 219 N.W. 121; Ernster v. Christianson, 24 S.D. 103, 123 N.W. 711; Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315; Merchants' Nat. Bank v. Stebbins et al., 15 S.D. 280, 89 N.W. 674; Marshall v. Harney Peak Tin Mining, Milling & Mfg. Co., 1 S.D. 350, 47 N.W. 290. In the case of Commercial & Savings Bank v. Duitsman, 48 S.D. 534, 205 N.W. 379, Judge Sherwood quotes the above rule but states that the rule as stated in Peet v. Dakota Fire & Marine Ins. Co., 1 S.D. 462, 47 N.W. 532, 533, is to be preferred. Such rule is as follows: 'The test of the right to direct a verdict is whether the court would be bound to set a verdict aside as against the evidence, if rendered against the party in whose favor it was directed.'
This latter statement of the rule has been approved in the late cases of Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 4 N.W.2d 213 and McCormick v. Rapid City Nat. Bank, 67 S.D. 444, 293 N.W. 819.
We believe there is no conflict in the rules above stated: That this court has consistently held that, upon a motion for a directed verdict, the court will assume the evidence of the party against whom such verdict is demanded to be true, and that such party is entitled to the benefit of all legitimate inferences, in his favor, arising therefrom. That the difference is in the choice of language rather than in the application of legal principles.
The facts as established by appellant's evidence, together with such reasonable inferences as may arise therefrom, are substantially as follows:
The respondents, at all times material to this case, operated a line of railroad across McCook County, and through the town of Unityville, in said county. About 80 rods north of its depot, in the said town of Unityville, a gravelled county highway running east and west crosses the respondents' railway track by means of a grade crossing. At this point, the railway track runs approximately north and south angling slightly from the northwest to the southeast. On the morning of August 1st, 1941, about 10 o'clock a.m., Dean Johnson, a young man twenty-one years of age, in good health, and who had theretofore completed a high school course, had received three years of normal training, and who had driven automobiles since he was fourteen years of age, proceeded to drive a Model A. Ford automobile, equipped with mechanical brakes in good working order, in a westerly course along said highway to the point where the highway crosses the railway track, at which point his automobile was struck by an on-coming passenger train and he was killed. That said automobile was driven at a speed of from 15 to 20 miles an hour as it approached the railway crossing. The day was bright and clear. To the north of the highway, for a distance of about 80 rods, was a field of DeKalb hybrid corn, from six to eight feet tall, that obstructed the view of the driver of the car, to his right. This field of corn extended to the fence along the right of way of the respondent railway company. At the fence corner and upon the right of way there was growing sweet clover and sunflowers that further obstructed the view of the driver of the car. Two witnesses for appellant testified that a person approaching from the east, at the time of the accident, did not have a clear view of the track to the north until within 20 or 25 feet of the crossing. A third witness fixed the distance at from 35 to 40 feet. These witnesses resided in the immediate vicinity of the crossing and were familiar with the existing conditions, as to visibility, on August 1, 1941.
The highway, at a point 300 feet east of the crossing, was about 3 1/2 feet lower than at the crossing. There was a slight upgrade along the highway as it approached the railway track from the east; and there was a slight bulge in the road immediately east of the crossing. The highway to the west of the crossing and near the crossing dropped about a foot and then proceeded along a level course westward. The cornfield to the north of the highway, as it neared the crossing, was a foot higher than the highway. About 300 feet east of the crossing, there was a slough or low place in the cornfield and the corn was not as high there as further west.
The railway company maintained a cross-arm, or cross-buck, warning sign to the west of the railway track and on the south side of the highway. This sign was about 10 feet high and was visible to one looking to the left when approaching the crossing from the east. There was no warning sign on the north side of the highway, except a small standard county warning sign maintained by the county at a point about 300 feet east of the crossing. This sign was leaning slightly to the north, and was somewhat obscured by growing weeds. It could not be readily seen.
The deceased had a clear view to the south or to his left, as he approached the crossing. A grain elevator, located about 60 rods south of the highway, could be seen, a switch stand some distance south of the crossing was visible, the railway warning sign to the west of the railway track was also visible, and the railroad track could be seen to the south of the crossing. The photographs offered in evidence show that the crossing was planked. There was a bulge in the road about 20 or 25 feet east of the crossing; the highway from the east, as it neared the track, followed a slight upgrade. It may be inferred that a driver approaching the crossing from the east and looking forward along the course of the highway, or to the right, did not have a clear view of the crossing, until very near it.
At a point about 30 feet east of the crossing, there was a trail, or undeveloped country road, leading south from the highway to a grain elevator. This road was used occasionally by farmers having occasion to visit this elevator. It was visible to a driver approaching the crossing from the east, if he looked to his left as he approached the crossing.
The bell on the locomotive was not rung nor was the whistle blown within 80 rods of the crossing, as required by statute, although the whistle was sounded at a crossing about a mile north of the point where the accident occurred.
Dean Johnson, the driver of the car, had never driven over this highway before, and was not familiar with the railway crossing where the accident occurred nor the location of the respondents' railway tracks, in the vicinity of the crossing in question.
Certain photographs, marked as exhibits, were received in evidence. These photographs were taken shortly after the accident in question occurred. Exhibit No. 20 was taken with the camera in the center of the highway facing west at a point 400 feet east of the center of the railroad crossing; and Exhibit No 2 was taken with the camera in the center of the highway facing west, at a point 205 feet east of the center of the crossing. These exhibits tend to corroborate the testimony of plaintiff's witnesses to the effect that the view to the north was obstructed, and that the crossing was not plainly visible to a driver approaching from the east. Exhibit No. 15 was taken with the camera in the center of the highway facing west, at a point...
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