Johnson v. Great Northern R. Co.

• Decision Date: 09 April 1898
• Docket Number: 6731
• Court: North Dakota Supreme Court

75 N.W. 250

7 N.D. 284

AXEL JOHNSON v. THE GREAT NORTHERN RAILWAY CO

No. 6731

Supreme Court of North Dakota

April 9, 1898

Appeal from District Court, Ward County; Morgan, J.

Action by Axel Johnson against the Great Northern Railway Company. Plaintiff had judgment, and defendant appeals.

Affirmed.

B. D Townsend, for appellant.

James Johnson, for respondent.

OPINION

CORLISS, C. J.

Plaintiff has recovered a judgment for the value of his wagon, with its load of coal, which it is undisputed, were destroyed by one of the defendant's freight trains at a railroad crossing. In answering the first point made by counsel for the defendant, that the highway had not been legally established it is only necessary to refer to a few facts in the case and, in connection therewith, cite the previous decisions of this court. It is not denied that the crossing had been used by the public, as part of a public highway, for at least eight years before the accident. One of the witnesses testified that he had used it for a period of 14 years. The defendant had placed there the usual planking, and the jury were justified in finding that it had erected there a sign warning travelers upon the highway that there was a railroad crossing at that place. So far as the duty of the defendant to the public was concerned, the crossing was as much a public crossing as though the highway had been laid out in strict accordance with law. Coulter v. Railway Co., 5 N.D. 568, 67 N.W. 1046. See, also, Bishop v. Railway Co., 4 N.D. 536, 62 N.W. 605.

It is urged that the property was placed in the position of peril which it was in at the time of the collision through the plaintiff's own carelessness, and that, therefore, he cannot recover. He was drawing coal from his coal mine, a few miles west of Minot, in this state, to that city, and was compelled to cross the railroad track at this point in order to reach the market for his fuel. While driving over the track, the axle of one of the wheels broke; and, before he was able to remove the wagon from the place of danger, it was struck by one of defendant's engines, and completely destroyed, it appears that the planks between the rails at this crossing had all been taken out, except one or two in the center. This was done that there might be room for the flangers on the engine to operate inside of the rails; it being necessary to use the flangers for the purpose of keeping the snow away from the rails. But it appears that the flangers were only six inches wide, and yet the space between the inside of the rail on each side and the plank in the center of the track was considerably more than six inches. One witness said that the space was more than ten inches wide. But we need not dwell on this matter. We will assume, for the purposes of this case that what the defendant did about removing the planking for the winter season was not a negligent act. Such act was not the proximate cause of the injury. The proximate cause was the negligence of the defendant's employes in charge of the engine drawing the freight train, in failing to discover the fact that the plaintiff's property was in a situation of peril on a public crossing in time to prevent a collision therewith. It is urged that plaintiff's wagon would not have broken down upon the track, and thus been placed in a situation where it could be struck by a passing train, had...