Kunkel v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Court: North Dakota Supreme Court
• Writing for the Court: CARMODY
• Citation: Kunkel v. Minneapolis, St. P. & S. S. M. Ry. Co., 18 N.D. 367, 121 N.W. 830 (N.D. 1909)
• Decision Date: 12 June 1909
• Parties: KUNKEL et al. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

18 N.D. 367

121 N.W. 830

KUNKEL et al.

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

April 29, 1909.

On Rehearing, June 12, 1909.

Syllabus by the Court.

In an action to recover damages for death of plaintiffs' father, caused by a train on defendant's track backing against him while he was on its right of way or track, it is held, under the evidence, that deceased was not a trespasser and defendant owed him the duty of ordinary care and diligence to avoid injuring him.

Held, further, that the questions of the negligence of defendant and the contributory negligence of the deceased were, under the evidence in this case, for the jury.

The law, out of regard to the instinct of self-preservation, will presume, prima facie, that a person who has suffered death by accident was, at the time, in the exercise of ordinary care and diligence, and this presumption is not overcome by the mere fact of the accident, even though no person saw it.

Appeal from District Court, Wells County; Edward T. Burke, Judge.

Action by George E. Kunkel and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Spalding, J., dissenting in part.Lee Combs, George K. Shaw, and Alfred H. Bright, for appellant. J. J. Youngblood and George A. Bangs, for respondents.

CARMODY, J.

This is an action brought by minor children, who are represented by a guardian, and by adult children to recover damages for the death of their father, Wm. A. Kunkel, whom it is claimed was negligently struck and fatally injured by one of defendant's trains. The trial court denied defendant's motion for a directed verdict, and submitted the question of its liability to the jury. There was a verdict for plaintiffs, and judgment accordingly. The court denied defendant's motion for a judgment notwithstanding the verdict. Thereupon judgment was duly entered in favor of plaintiffs and against the defendant. From which judgment this appeal was taken.

The defendant's main track passes through the city of Fessenden in a general east and west course, the depot being situated on the north side thereof and about the center of the city. Next south of the main track is the passing track, and south of that the house track. The depot and most of the platform is situated between Fifth and Sixth avenues, which are located north of the track. The residence portion of the city is mostly northeast of the depot, and constitutes what is called the “North Side.” The business portion of the city is mostly southwest and on the south side of defendant's tracks, and constitutes what is called “South Side.” The streets of the city run east and west parallel with defendant's tracks and the avenues north and south. The highway running at right angles and about 125 feet west of defendant's depot is Fifth avenue and Maple avenue, one being a continuation of the other; the part north of the railroad tracks is called “Fifth Avenue,” and the part south of said tracks is called “Maple Avenue.” These two avenues are connected across defendant's tracks and right of way, and the crossing kept open. This is the main business street of the city. The depot grounds are 300 feet wide, and on either side running east and west is a street known as “Railway Street.” About four or five years ago the road supervisor built a walk, bridge, or stile from the northeast or residence portion of the city nearly along the east line of Sixth avenue where the same intersects Railroad street, crossing a piece of low ground to the east end of the depot platform and mostly on defendant's right of way. It was mostly used by pedestrians passing between the depot and the residence portion of the city.

The public generally for several years previous to the time the accident occurred had traveled daily across and along the defendant'stracks or right of way in said city of Fessenden; the usual route being about as follows: From the east line of Sixth avenue where the same intersects Railroad street across the stile or bridge hereinbefore mentioned across the right of way to a point near the east end of the depot platform; thence west along the platform to some point west of the depot; thence diagonally across the tracks and depot grounds to the northeast corner of Maple avenue. Sometimes they would walk west a short distance, from 12 to 50 feet, on the main track, and thence diagonally across the depot grounds to Maple avenue. This route for the most part was used by people who went from the residence portion on the North Side to the post office and business places on the South Side and vice versa. The depot platform extended west of the depot about 25 or 30 feet. There were no steps on the south side or west end of the platform. At the west end of said platform there was an apron sloping to the ground, from which there was at the time of the accident a fairly well-defined path, on the north side of the main track west to Fifth avenue, over which people sometimes traveled to the sidewalk on Fifth avenue; thence south across the tracks to Maple avenue or north to their destination, as the case might be. Deceased sometimes traveled that route in going to the post office or business portion of the city on the South Side. There was at the time of the accident a path, though not very well defined, across the main track from the north rail, and crossing the south rail at the place where deceased was found after the accident.

The defendant had never objected to the use of its right of way, depot ground, and railway tracks, and never took any steps to prevent it. There was a walk on the east side of Maple avenue, but no connection except a pathway between that walk and the west end of the depot platform. The post office was located south of the tracks on the east side of Maple avenue. Deceased frequently visited the depot. He had knowledge of the trains, the time they were due, and was thoroughly familiar with the locality and all the conditions. On Sunday November 18, 1906, there was a severe and blinding snow storm. The wind was strong and blowing from the northwest. It blew in gusts, sometimes stronger than at other times. Passenger train No. 105, which was a mail train going west, arrived at the depot at 1:15 o'clock and left at 1:17 o'clock in the afternoon. At about 1:20 or 1:25 o'clock p. m. deceased came into the depot and inquired if train No. 105 was in, and the operator answered, “Yes; it has gone.” Whereupon deceased said “All right,” and went out of the depot. At 1:30 or 1:35 o'clock p. m. he was found at a point about 48 feet from the west end of the depot platform, and about 52 feet east from the railroad crossing on Maple and Fifth avenues. He was found lying on the south rail of the main track with his legs over the rail, facing up and straight away from the track. One leg was cut off and left near the north rail; the other was almost cut in two. He had on no cap. It had rolled off. He had on a fur or fur-lined overcoat, and the collar was turned up around his ears. There was no obstruction whatever between the crossing on Maple and Fifth avenues and the east end of the yards. At the time train No. 105 going west was at the depot, there was an extra freight train on the passing track going east. After train No. 105 passed, the freight train pulled up to the east end of the yards, and part of it, consisting of the engine and 12 cars, backed west down the main track, passing the depot just after deceased went out, and passed the spot where he was found. The evidence does not show whether there was a lookout or brakeman on the back end of the freight train. The freight train as it was backing up was seen and heard by at least four persons-the operator, Mr. Ritt, and the agent, Mr. Gordon-who were in the depot at the time it passed by, and Wm. Jackson, who was going down Sixth avenue. He saw it first when he was on the north side of Railway street, a distance of about 150 feet from the tracks. He walked up closer to the track, and waited until the train backed out of his way, and then crossed the track at the east end of the depot platform and went to the post office. He could see the train when it passed to the west end of the yards, but heard no signal of any kind. Fred Kortbin, who was walking south on Fifth avenue toward the railroad tracks, also saw the freight train backing up when he was at the telephone office, a distance of 336 feet north of the tracks. After it had backed past the crossing 100 feet or so it stopped, and a brakeman ran to the place where Mr. Kunkel was lying. The witnesses heard no whistle or bell ring or signal of any kind. Witness Kortbin heard the train running when he was at the telephone office, and said it must have been going four, five, or six miles an hour. Wm. Jackson said he thought it was running five or six miles an hour. Mr. Ritt, the telegraph operator, said it was running about three miles an hour. The injured man was taken to the office of Dr. McGregor, and died in about three-quarters of an hour after he was taken there. On examination it was found that one of his feet was cut off and the other almost severed. The upper parts of his legs were broken and crushed, and there were numerous lacerations. The wounds were more prominent, and more readily distinguishable, on the front side of the body than on the rear. The theory of the plaintiffs is that while deceased was walking upon the main track-probably crossing it-he was struck by the backing train which was going in the same direction he was, and that he fell to the track and was run over.

The theory of the defendant is that the company is not liable: “(1) Because the evidence in this case fails to show that there was a pathway traveled, or other passageway, as alleged in the complaint, either established by, or suffered and permitted by, the defendant, and upon which the deceased was either impliedly or expressly,...