Merrill v. Minneapolis & St. L. Ry. Co.
| Decision Date | 28 December 1910 |
| Citation | 129 N.W. 468,27 S.D. 1 |
| Parties | MERRILL v. MINNEAPOLIS & ST. L. RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County.
Action by Helen S. Merrill against the Minneapolis & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
See also, 127 N.W. 846.
Case & Shurtleff, W. H. Bremmer, and George W. Seevers, for appellant.
Sherin & Sherin, for respondent.
This suit was commenced by the plaintiff, who is respondent in this court, against the defendant, the appellant, to recover damages on account of an alleged injury to plaintiff's person by being struck by one of defendant's locomotive engines, at a street crossing in the city of Watertown, on the 7th day of July, 1908. Plaintiff alleged that defendant carelessly and negligently omitted its duty while approaching the said crossing, and gave no signal by ringing the bell or sounding the steam whistle, and carelessly and negligently omitted its duty in failing to keep lookout while approaching and crossing said street, and that by reason of such negligence the defendant's locomotive struck plaintiff while she was crossing said street, throwing her high up in the air and violently upon the ground with such force as to severely and permanently injure plaintiff, without any fault on her part, to her damage in the sum of $4,000. Defendant admitted that plaintiff came in contact with one of its engines while being operated over and across said street, and denied any negligence in reference thereto on the part of defendant or its employés, and affirmatively alleged that all the injuries, if any, sustained by plaintiff were caused by and resulted from her failure to exercise due, proper, and ordinary care for her own safety, and that the negligence of plaintiff contributed to cause the accident and injuries alleged and complained of by plaintiff. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $2,000. Defendant has brought the cause to this court on appeal, assigning various errors and also assigning the insufficiency of the evidence to sustain said verdict.
The principal question for consideration is, whether the evidence was sufficient to sustain the verdict. At the close of plaintiff's testimony and again at the close of all the evidence, defendant moved the court for a directed verdict on the ground of the insufficiency of the evidence, and also again raised the same question by motion for new trial. Appellant contends that the evidence fails to show any negligence on its part, and fails to show that defendant's engineer in charge of said engine was not using reasonable diligence to avoid any and all accidents at said crossing. Appellant also contends that the undisputed evidence shows that the engine was not running to exceed five or six miles an hour, when it crossed over said crossing. All disputed questions of fact have been resolved in favor of plaintiff by the verdict of the jury; and also all points at issue in the evidence, about which different reasonable minds might fairly and reasonably draw different conclusions, were also resolved in favor of plaintiff by the verdict of the jury. One of the material points at issue on the trial was whether or not the bell or whistle were sounded while said engine was approaching said crossing. On this point there was a conflict in the evidence. Plaintiff and a number of witnesses who were in a position to hear testified that they heard neither bell nor whistle; while a number of witnesses on the part of defendant, testified that the bell and whistle were sounded. This conflict in the testimony was settled by the verdict of the jury in favor of plaintiff. Another point at issue on the trial was the question of the speed of the engine at the time of and immediately prior to the happening of the accident. The ordinance of the city of Watertown provided that such locomotives should not run over and across streets at a greater speed than six miles an hour. The engineer and fireman operating the said engine testified that said engine was running at the time of the said accident five or six miles an hour; and, while there were no other witnesses who undertook to assert the rate of speed of said engine at said time, still, respondent contends that the surrounding facts and circumstances show the engine was traveling at a much higher rate of speed. The incidents surrounding and culminating in an accident of this character are of such short duration and succeed each other with such rapidity that it necessitates a close analysis of the testimony in order to arrive at a proper conclusion as to the effect thereof. The following plat will serve to show the surrounding locality to some extent:
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From the record it appears that plaintiff was on her way from her place of residence, on the north side of defendant's tracks, going south to join her husband uptown, that her course or travel was on the east side of Box Elder street going directly south, that the tracks of defendant, one switching and one main track, lay over and across Box Elder street at an angle of about 45 degrees in a northwesterly and southeasterly direction, and that plaintiff was obliged to cross these tracks on her way from her residence to the place uptown where she expected to join her husband. The record shows that she approached the switching track of defendant at a rapid walk. She testified that when she came to the first track, the switching track, 46 feet north of the main track, she stopped and listened and looked each way, up and down the track, and did not see or hear said engine, and that after she had crossed the switching track and before reaching the main track, she again looked and listened up and down the main track and saw no engine and did not hear the bell or whistle of said engine. As she stepped on the main track, she was struck by the engine, which came from the northwest. She testified that she was thrown high in the air, so that she could see into the cab as the engine rushed by her. Other witnesses saw her high in the air, falling through the air, some five or six feet high, with her head lowermost and her arms extended. Witness Bowers, for the defendant, standing on the sidewalk south of defendant's main track, who had the best possible opportunity to observe her at the moment of contact with the engine, said: Another witness testified that his attention was called to her when she was falling, up in the air five or six feet high, and that he started middling fast to go toward her, that he thus traveled 50 yards while the engine went 150 yards. This was at a time when the engine was slacking its speed. This witness also testified that he saw plaintiff approaching near the tracks, that he was on the north side of the switching track 170 yards east of the crossing where the accident occurred, that a building was directly west of him and that he could not see her until she approached near the switching track, that he could see up the main track to the northwest of the street crossing at the time he first saw plaintiff, and that he did not see an engine in that direction at that time, that immediately before the accident his attention was called to other matters and he did not see or hear the engine approach and strike plaintiff, but first saw her after she had been struck and while she was going through the air on the north side of the engine. The testimony also shows that she struck the ground about eight feet north of the main track and from 40 to 60 feet east of the sidewalk where she had been struck by the engine.
The fact that she was thrown 40 to 60 feet by collision with this engine; the fact that while witness Henry walked 50 yards at a rapid gait the engine went 150 yards; and that, too, when the engine was slowing down its speed after the accident; the fact that plaintiff nor witness Henry did not see or hear the engine immediately prior to plaintiff's stepping upon the switching track -all tend to show that said engine was traveling at a much higher rate of speed than six miles an hour at the time of the accident. As a matter of common knowledge, the jury had the right to take into consideration that a person walking at an ordinarily rapid gait will travel about four miles per hour, and from the facts and circumstances immediately surrounding the happening of this accident, the jury might have fairly and reasonably concluded that said engine was running anywhere between 12 and 25 miles an hour at the time of said accident. If plaintiff was traveling at a rate of four miles an hour after she looked and listened, when she was 46 feet north of the main track and the engine was only traveling five or six miles per hour, the engine was then at some point between 60 and 70 feet west of her at the time she so looked and listened, and which she could not have helped but see and hear. If the engine was traveling at a much higer rate of speed, it was then not at a point between 60 and 70 feet of her, but was at a much further distance west, and this might account for the fact that she did not see or hear it when she looked and listened, and also might account for the fact that Henry did not see it, because it was then not there to be seen. It is much more reasonable to conclude that the engine was not there at that time, than it is to conclude that it was and that she saw it, and, at the risk of her life, kept right on walking into it. The jury had the right to take into consideration the...
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