McGregor v. Great N. Ry. Co.

• Citation: 31 N.D. 471,154 N.W. 261
• Parties: McGREGOR v. GREAT NORTHERN RY. CO.
• Decision Date: 16 September 1915
• Court: United States State Supreme Court of North Dakota

31 N.D. 471

154 N.W. 261

McGREGOR

v.GREAT NORTHERN RY. CO.

Supreme Court of North Dakota.

Sept. 16, 1915.

Syllabus by the Court.

When the evidence in regard to contributory negligence is such that different minds may reasonably draw different conclusions, either as to the facts or the conclusions to be drawn from the facts, the question of contributory negligence is one of fact to be determined by the jury.

It is held that, under the terms of the contract and the circumstances of the case, a caretaker of a shipment of horses who at the time of the accident was riding in the stock car, instead of in the caboose, was not guilty of contributory negligence as a matter of law.

A person in charge of live stock, riding under a contract which evidences his right of transportation on the train transporting the stock shipment, and contemplates his carriage to care for the stock, is a “passenger for hire.”

A person so traveling will be deemed to have assumed all risks reasonably incident to the mode of transportation utilized, but not those risks and dangers produced by unnecessary and unusual occurrences not incident to the proper handling of a train of that kind.

A railway company is not relieved from its obligation to exercise great care for the safety of such passenger.

It was not reversible error for the court to use the term “proximate cause,” without otherwise defining it, in absence of a request for an appropriate instruction.

The court's instructions to the jury should be considered and construed as a whole.

Where an instruction is correct as far as it goes, a party to the action who deems the same not sufficiently explicit should present requests for more specific and comprehensive instructions.

An affidavit presented to show diligence in support of a motion for new trial on the ground of newly discovered evidence should specifically state the acts performed in order that the court may determine what diligence was used, and mere general assertions of diligence are insufficient, as they constitute only the opinions or conclusions of the affiant.

A motion for new trial on the ground of newly discovered evidence is addressed largely to the sound judicial discretion of the trial court, and the appellate court will not interfere unless a manifest abuse of such discretion is shown.

Appeal from District Court, Ward County; Leighton, Judge.

Action by R. R. McGregor against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Dudley L. Nash, of Minot, and Murphy & Toner, of Grand Forks, for appellant. E. R. Sinkler, of Minot, for respondent.

CHRISTIANSON, J.

The plaintiff, R. H. McGregor, brought this action to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendant railway company while he was traveling in charge of stock upon one of its freight trains. The plaintiff claims that on March 11, 1913, while rightfully upon said train of the defendant and in charge of a car load of horses then being shipped from St. Cloud, Minn., to Glasgow, Mont., and while riding on such train engaged in the discharge of his duties as caretaker, accompanying such stock shipment in accordance with the shipping contract, the defendant negligently managed the train by stopping the same almost instantly while the train was running at a speed of about 40 miles per hour, with the result that the horses in the charge of the plaintiff were thrown to the floor of the car, thereby breaking the partitions and mangers in said car, that thereupon the plaintiff, with the assistance of the employés of the defendant in charge of said train, went to the car for the purpose of taking care of said horses and getting them on their feet, and that while so engaged, and before the plaintiff had an opportunity to get out of the car and into the caboose attached to the train, the defendant's employés started the train and caused the same to proceed at a great rate of speed, and that while so proceeding, the defendant's employés again grossly, negligently, and carelessly brought the said train to an almost instant stop, with the result that one of the horses in the car was thrown upon the plaintiff, thereby pinioning him to the floor of the car, resulting in severely and permanently injuring the plaintiff. The defendant denied negligence, and further charged that plaintiff's injuries, if any, were caused through plaintiff's own carelessness in placing himself in a dangerous and unsafe position while riding upon the train, in this: That the plaintiff, without any cause or justification whatever, went into the car where certain horses and stock were being transported, and while there, and on account of the ordinary and usual handling and movement of said car and train, plaintiff was brought in contact with the horses and suffered the injuries complained of. At the close of all the testimony the defendant moved for a directed verdict based principally on the ground that plaintiff was guilty of contributory negligence. The motion was denied, and the cause submitted to the jury, which returned a verdict in favor of the plaintiff in the sum of $1,548.20. The defendant made an alternative motion for judgment notwithstanding the verdict or a new trial, which was denied, and this appeal is taken from the judgment and from the order denying defendant's motion for judgment notwithstanding the verdict or a new trial.

The evidence shows that on March 8, 1913, the plaintiff entered into a contract with the defendant railway company for the shipment of ten head of horses from St. Cloud, Minn., to Glasgow, Mont. Under the terms of this contract, it was agreed that “the shipper will * * * feed, water, and attend same at his own expense and risk while in the stockyards of the carrier waiting shipment or while in the cars. * * *” The contract also provided for a limitation of the value of the horses carried, and further provided that the contract does not entitle “the holder or the parties named therein to ride in the cars of any train except the train in which the stock referred to is drawn or taken.” The contract, however, contains no provision requiring the shipper to ride in the caboose attached to the train. On March 11, 1913, the plaintiff was riding in the caboose of the freight train in question between Devils Lake and Minot, in this state. The train had two engines. About two miles west of Churches Ferry the train came to a sudden stop by reason of the engines pulling apart. The plaintiff testifies that the shock was so violent that while he was sitting in the caboose he fell on the floor. According to the plaintiff's testimony, the train at this time was running from 35 to 40 miles an hour, while the defendant's witnesses place the speed at from 20 to 25 miles an hour. When the train stopped the plaintiff went back to his car, which was the second car from the caboose, to see about his stock, and found that the horses had been knocked down, and that one of them was still down and apparently unable to get up, and that thereupon the plaintiff and a brakeman named Scheideeger went into the car, and finally succeeded in getting the horse up. The brakeman, Scheideeger, testified:

“I was asked by the conductor to help this man [referring to plaintiff] get up the horses.”

The partitions had been broken down, and plaintiff started to nail the planks up again. Before this work was finished, and while he was so engaged, the train started. The brakeman still remained in the car. No request was made of the plaintiff to cease his labors, or to leave the car, and apparently no opportunity given him or the brakeman to get out of the car. After the train had proceeded for some distance, and while plaintiff was standing in an upright position at the side of the car, near the door, engaged in nailing the planks at the side of the car, the train again came to a sudden or violent stop, for the same cause which occasioned the first stop; viz., the two engines pulled apart. At the time of the second stop the train, according to plaintiff's testimony, was running at a speed of from 20 to 30 miles per hour, but according to the testimony of members of the train crew at a considerably lesser speed. Plaintiff testified that at the second stop one of the horses fell upon him and pinioned him to the floor of the car, and that his brother, who was in the car at the time, and an emigrant traveling on the same train, assisted in raising the horses. Plaintiff claimed that his back and thigh were bruised, his toes trampled, and a lump made upon his back, which was still there at the time of the trial; that he feels weak and has pain, does not sleep well at night, and cannot do hard work.

The brakeman, Scheideeger, testified that he was standing in the door of the car at the time of the second stop, and that the plaintiff was standing against the south wall of the car. He says that he could not see plaintiff at the time of the stop, but could see him a few minutes afterwards, and that when he saw him plaintiff was still standing against the wall; that he could see some of the horses; and that none of them were down. The brakeman, Scheideeger, further testified:

“Q. Was there much of a jar when it stopped the second time? A. Quite severe; yes.”

The engineer testified that both stops were caused by the head engine breaking off from the rear engine, occasioning what he called an “emergency stop”; that he examined the couplings to see if he could find why they would not stay coupled; that the coupling was not more than ordinarily worn, and was the standard coupling used by railways. On cross-examination he testified that it was a usual or customary thing to couple engines together, but not a usual or customary thing to have them break apart; that he did not know what caused the breaking apart of the engines; that there must have been something the matter to cause them to separate, but he...