Ouverson v. City of Grafton
| Decision Date | 07 November 1895 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Templeton, J.
Action by Mary Ouverson against the City of Grafton for injuries resulting from an obstruction in a street. There was a verdict for plaintiff, and from an order denying a new trial defendant appeals.
Affirmed.
Halvor Steenerson, O. E. Sauter and J. H. Fraine, for appellant.
An object in the highway with which the traveler does not come in contact or collision and which is not an obstruction in the way of travel is not to be deemed a defect. Cook v Montague, 115 Mass. 571; Keith v. Inhabitants of Easton, 2 Allen, 552; Durke v. Lowell, 13 Metc 292; Kingsburg v. Dedham, 13 Allen, 186; Cook v Charleston, 13 Allen, 190. Where a horse takes fright at some object by the roadside and runs away but does not come in contact with obstructions or defects in the highway, the municipality is not liable. Moulton v. Sandford, 51 Me. 127; Perkins v. Fayette, 68 Me. 154; Dreher v. Fitchburg, 22 Wis. 675. The duty of the municipality does not go to the extent that it must keep its streets in such condition of repairs, and so free from obstacles that horses in general will not take fright at them. County of Fulton v. Rickel, 106 Ind. 501, (7 N.E. 220;) Merrill v. Hampden, 26 Me. 234; Davis v. City of Bangor, 42 Me. 522; Nichols v. Athens, 66 Me 402. The collision with the platform scales was the proximate cause of the injury, and not the fright from the engine. Campbell v. City, 32 Minn. 308; Lowery v. Manhattan Ry. Co., 1 N.E. 609; Hinckly v. Somerset, 14 N.E. 166; Hoag v. Lake Shore Ry. Co., 27 Am. Rep. 653; Savery v. Manchester, 58 N.H. 44; Schaefer v. Ry. Co., 105 U.S. 1070; Insurance Co. v. Tweed, 7 Wal. 44; Railway Co. v. Kellogg, 94 U.S. 469; Town v. Adams, 15 Am. & Eng. Corp. Cases, 259; Houfe v. City, 29 Wis. 296. One who voluntarily or needlessly puts himself in a dangerous place, must take whatever injury comes from his own act, or want of attention to danger. Goldstein v. Railway Co., 46 Wis. 404; Pittsburg Railway Co. v. Collins, 87 Pa. 405; Baltimore Railway Co. v. DePew, 41 Ohio St. 121. Where the driver of a carriage by reason of his negligence causes injury either alone or concurrently with the acts of others to the passenger of the carriage, the negligence of the driver is imputed to the occupant. Thoragood v. Bryan, 8 C. B. 115; Morris v. C. M. & St. P. Ry. Co., 26 F. 22; Houfe v. Town, 29 Wis. 296; Olis v. Town, 47 Wis. 422; Railroad Co. v. Miller, 25 Mich. 274; Lockhart v. Litchtenthober, 46 Pa. 151; Cuday v. Harn, 46 Mich. 596; Prideaux v. Mineral Point, 43 Wis. 513; Stillson v. Hannibal Ry. Co., 67 Mo. 671; Holly v. Boston Gas Light Co., 8 Gray, 123; Carlisle v. Sheldon, 38 Vt. 440.
Cochrane & Feetham, for respondent.
Where an object naturally calculated to frighten horses of ordinary gentleness is negligently permitted to remain in the highway, and a horse becomes frightened at it, and injury results, the corporation is liable. Chicago v. Hay, 75 Ill. 530; Town of Rushville v. Adams, 57 Am. Rep. 124; Morse v. Richmond, 41 Vt. 435; Winship v. Enfield, 42 N.H. 199; Dimock v. Town, 30 Conn. 129; Ayer v. Norwich, 39 Conn. 376; Young v. New Haven, 39 Conn. 435; Bartlett v. Hooksett, 48 N.H. 18; Foshay v. Town, 25 Wis. 288; Curd v. Ellsworth, 20 Am. Rep. 722; Stanley v. Davenport, 6 N.W. 706; Stanley v. Davenport, 2 N.W. 1064; Town v. Arnold, 13 At. Rep. 444; Bennett v. Fifield, 43 Am. Rep. 17; Turner v. Buchanan, 42 Am. Rep. 485; Hughes v. Fond du Lac, 41 N.W. 407; Cairncross v. Pewaukee, 47 N.W. 13; Little v. City, 42 Wis. 643; Bloor v. Delafield, 69 Wis. 273; Bennett v. Lovell, 18 Alb. L. Jr. 303; Elliott on Roads and Streets, 449; Jones on Neg. sec. 84; 2 Thompson on Neg. 778; 2 Dillon on Muc. Corp. § 1011 and note; Shearman and Redfield on Neg. § 355; Deering on Neg. 169; Morrill on City Neg. 5. The duty being imposed upon the city to keep its streets free from nuisances, it is liable for a neglect of this duty. Larson v. Grand Forks, 3 Dak. 307; Ludlow v. Fargo, 3 N.D. 485; Morrill on City Neg. 72; Jones on Neg. 53. "Where two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, one being a culpable defect in the highway, the other some occurrence for which neither party is responsible, the municipality is liable provided the injury would not have been sustained but for such defect. Ring v. Cohoes, 77 N.Y. 83; Lake v. Milliken, 16 Am. Rep. 456; Lowery v. Manhattan Ry. Co., 99 N.Y. 158; Ricker v. Freeman, 9 Am. Rep. 267; Chapman v. New Haven Ry. Co., 19 N.Y. 341; Forner v. Geldmecher, 42 Am. Rep. 388; Jones on Neg. 163 n. 381; 2 Shearman and Redfield, 346; Turner v. Buchanan, 82 Ind. 147; Binford v. Johnson, 42 Am. Rep. 508; Griggs v. Fleckenstein, 14 Minn. 62; Harris v. Mobbs, 31 Moaks Eng. Repts. 252; Morrill on Neg. 106; Crawfordsville v. Smith, 79 Ind. 308; Chicago v. Schmidt, 29 Alb. L. Jr. 479; Emporia v. Schmidling, 33 Kan. 485; Pastene v. Adams, 49 Cal. 87; Elliott on Roads and Streets 451, n.; Boss v. N. P. Ry. Co., 2 N.D. 128. To establish contributory negligence, the burden is upon the defendant. Gram v. N. P. Ry. Co., 1 N.D. 252; Sanders v. Reister, 1 Dak. 151; Mare v. N. P. Ry. Co., 3 Dak. 336; Beach on Contributory Neg. § 426. Under the evidence in this case, the question of contributory negligence was one of fact for the jury, and could not be disposed of as a matter of law. Jeffrey v. K. & D. Ry. Co., 9 N.W. 884; Town of Albion v. Hetrick, 90 Ind. 545; Pennsylvania Co. v. Hensil, 36 Am. Rep. 188; O. & M. Ry. Co. v. Collarn, 38 Am. Rep. 134; Henry County Turnpike Co. v. Jackson, 44 Am. Rep. 274. "One is not required to forego travel on a highway merely because he knows it to be dangerous or to show that in the use of a highway know by him to be dangerous, he used extraordinary care to avoid an injury, for which he seeks to recover damages; but he should be careful in proportion to the danger of which he has knowledge and may proceed if it be consistent with reasonable prudence to do so; and it will generally be a question for the jury whether he used reasonable care, his knowledge of the defect in the highway being a circumstance to be considered with other circumstances in determining whether he used reasonable care." Henry County Turnpike Co. v. Jackson, 44 Am. Rep. 275; Griffin v. Auburn, 58 N.H. 121; Osage City v. Brown, 27 Kan. 74; Estelle v. Lake Crystal, 27 Minn. 243; Kelly v. Southern Minn. Ry. Co., 28 Minn. 98; Mahoney v. Metropolitan Ry. Co., 104 Mass. 73; Thomas v. Western Union Tel. Co., 100 Mass. 157; Lyman v. Amherst, 107 Mass. 339; McKenzie v. Northfield, 30 Minn. 456; Mehan v. Syracuse, 73 N.Y. 585; Evans v. Utica, 69 N.Y. 166; City of Aurora v. Hillman, 90 Ill. 61-65; Lovenguth v. City of Bloomington, 71 Ill. 238; Bloomington v. Chamberlain, 104 Ill. 268; Harris v. Township, 31 N.W. 425; Allegany Co. v. Broadwaters, 16 At. Rep. 223; Kelly v. Fond du Lac, 31 Wis. 179-187; Elynton Land Co. v. Mingea, 7 So. 666. The negligence of the driver was not imputable to the plaintiff. Town of Albion v. Hetrick, 46 Am. Rep. 233; Robinson v. R. R. Co., 66 N.Y. 11; Bennett v. R. R. Co., 36 N.J.L. 225; Knapp v. Dagg, 18 How. Pr. 165; Nisbet v. Town, (Ia.) 39 N.W. 516; R. R. Co. v. Steinbremer, 47 N.J.L. 161; Little v. Hacket, 116 U.S. 366, 6 S.Ct. 391; Dyer v. Erie Ry. Co., 71 N.Y. 228; Transfer Co. v. Kelly, 36 Ohio St. 86; Cuddy v. Horn, 46 Mich. 596, 10 N.W. 32; Tompkins v. Ry. Co., 4 P. 1165; Follman v. Mankato, 35 Minn. 522; Metcalf v. Baker, 11 Abb. Pr. (N. S.) 431; St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91; Elynton Land Co. v. Mingea, 7 So. 666; Ry. Co. v. Hughes, 6 So. 413; Noyes v. Roscawen, 10 At. Rep. 690; Carlisle v. Brisbane, 6 At. Rep. 372; Town v. Musgrove, 18 N.E. 452; Sheffield v. Cent. U. Tel. Co., 36 F. 164; R. R. Co. v. Hogeland, 7 At. Rep. 105; State v. Boston & M. R. Co., 15 At. R. 36; Beach Cont. Neg. § 109 and note. The question whether this engine was an object in its nature calculated to frighten horses of ordinary gentleness, was a question for the jury to determine from a consideration of its character, situation, the amount of travel on the highway, and other like circumstances. Elliott on Roads and Streets, 450; 2 Thompson on Negligence, 778; Cleveland C. C. & I. Ry. Co. v. Wynant. 17 N.E. 118; Ayer v. The City of Norwich, 39 Conn. 376, 12 Am. Rep. 396; Young v. City of New Haven, 39 Conn. 435. Evidence of other horses having frightened at the same object was admissable to show its natural tendency to frighten horses. Elliott on Roads and Streets, 451; Darling v. Westmoreland, (N. H.) 13 Am. Rep. 55; Crocker v. McGregor, (Me.) 49 Am. Rep. 611. The question as to whether or not an ordinarily prudent person would attempt to drive by the engine, was properly a question for the jury. Beach on Contrib. Neg. 328; Alleghany Co. v. Broadwaters, 16 At. Rep. 223; Harris v. Township, 31 N.W. 425; Kelly v. Fond du Lac, 31 Wis. 179 and 187; MacKenzie v. Northfield, 30 Minn. 456; Estelle v. Ry. Co., 28 Minn. 98; Hampson v. Taylor, 8 A. 331 and note; M'Keigne v. City of Janesville, 31 N.W. 298.
Mary Ouverson sued the City of Grafton upon a complaint which after setting forth the incorporation of the municipality, and its duty, under its charter, to keep its streets free from obstructions, alleged in substance that for two weeks prior to September 23, 1892, the defendant carelessly and negligently permitted a threshing engine to stand upon one of its principal business streets, in such a position as to greatly lessen the width for available travel, and that said engine was calculated to frighten horses and obstruct the free use of the...
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