Pendroy v. Great Northern Railway Company

• Decision Date: 22 April 1908
• Court: North Dakota Supreme Court

117 N.W. 531

17 N.D. 433

L. B. PENDROY v. GREAT NORTHERN RAILWAY COMPANY

Supreme Court of North Dakota

April 22, 1908

Rehearing denied September 12, 1908.

Appeal from District Court, McHenry County; Goss, J.

Action by L. B. Pendroy against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Arthur Le Sueur and Murphy & Duggan, for appellant.

Where the view of one about to cross a railroad track is obstructed, he must stop and listen. West v. N. P. Ry Co., 13 N.D. 221, 100 N.W. 254; Kniter v. Railway Co. 54 A. 276; Chicago, etc. Ry. Co. v. Crisman, 34 P. 286.

Plaintiff was guilty of contributory negligence. Houghton v Ry., 58 N.W. 314; Brady v. Ry., 45 N.W. 1110; Shatto v. Ry., 121 F. 678; Seefeld v. Ry., 35 N.W. 278; Barnhall v. Ry. 33 So. 63; Ry. v Holdem, 49 A. 625; Day v. Ry., 52 A. 771; Allen v. Ry. Co., 19 A. 105; Bond v. Railway Co., 76 N.W. 102; Shufelt v. Ry., 55 N.W. 1013; Haas v. Ry., 11 N.W. 216; Rogers v. Ry., 72 N.E. 945; Proper v. Ry., 99 N.W. 283; Cleveland Co. v. Heine, 62 N.E. 455; Fletcher v. Ry., 21 N.E. 302; Donnelly v. Ry., 24 N.E. 38; Debbins v. Ry., 28 N.E. 274; Marty v. Ry., 35 N.W. 670.

Court's definition of "proximate cause" and "contributory negligence" were erroneous. Reitveld v. Wabash R. Co., 105 N.W. 515; Banning v. Ry. Co., 56 N.W. 277; Kerr v. Topping, 80 N.W. 321.

O'Connell & Donnely, Palda & Burke and Bossard & Ryerson, for respondent.

Failure to stop and listen is not alone negligence. N.Y., S. & W. R. Co. v. Moore, 45 C. C. A. 21; Dougherty v. Chicago, etc. Ry., 104 N.W. 672; Guggenheim v. Lakeshore & M. S. Ry. Co., 33 N.W. 161; Union Pac. R. R. Co. v. Ruzicka, 91 N.W. 543; Shearman & Redfield on Negligence, section 477; Massoth v. Deleware Canal Co., 64 N.Y. 524.

Obstruction of view may impose on a railway company increased care and watchfullness, call for more signalling than law requires, and excuse a traveler who might otherwise be deemed negligent. Siegel v. Milwaukee R. Co., 48 N.W. 488; Oldenburg v. N.Y. Central R. Co., 26 N.E. 1021; Parsons v. N.Y. Central Ry. Co., 113 N.Y. 355, 21 N.E. 145; McDuffie v. Lake Shore R. Co., 57 N.W. 248; Petrie v. N.Y. Cent. R. Co., 66 Hun. 282; Fisher v. M. R. Co., 18 A. 1016; Baltimore R. Co. v. Walborn, 26 N.E. 207; N. P. R. Co. v. Austin, 12 C. C. A. 97; Kenny v. H. R. Co., 16 S.W. 837.

Injury presumed caused by omission of signals. Huckshold v. St. Louis R. Co, 19 Mo. 548; Doyle v. Boston R. Co., 145 Mass. 385; Beisiegel v. N.Y. Cent. R. Co., 34 N.Y. 622.

Backing a train is not negligence, but a watchman should be on rear car to warn travelers. Duame v. Chicago R. Co., 40 N.W. 394; Whalen v. Chicago R. Co., 44 N.W. 849; Bergman v. St. Louis R. Co., 1 S.W. 384; Hamilton v. Morgan's R. Co., 8 So. 586; Robinson v. Western Pac. R. Co., 48 Cal. 409; Chicago R. Co. v. Walsh, 41 N.E. 900; Ry. Co. v. Schuster, 7 S.W. 874; Chicago R. I. & P. Ry. Co. v. Sharp, 11 C. C. A. 337.

The court's definition of "proximate cause" was correct. Shearman & Redfield, on Negligence, section 26; Oil Creek Oil Co. v. Keighron, 74 Pa. 320; Insurance Co. v. Tweed, 7 Wal. 52.

Also of "contributory negligence." Shearman & Redfield on Negligence, section 94; Scheffer v. Ry. Co., 105 U.S. 249, 26 L.Ed. 1070.

Contributory negligence must be a proximate, not a remote cause. 2 Thompson on Neg. 1151; Wharton on Neg., section 323; Kline v. C. P. R. Co., 37 Cal. 400; Meeks v. Southern P. R. Co., 56 Cal. 513; Isbell v. N.Y. R. Co., 27 Conn. 393; Weymire v. Wolfe, 52 Iowa 533; State v. M. R. Co., 52 N.H. 528; Dudley v. Ferry Co., 45 N.J.L. 368; Mark v. H. B. Co., 56 How. Pr. 108; Smithwick v. Hall & Upson Co., 12 L. R. A. 280, and note.

OPINION

FISK, J.

This is an appeal from an order of the district court of McHenry county denying a motion made in the alternative for judgment notwithstanding the verdict, or for a new trial, and also from the judgment entered pursuant to the verdict of a jury.

Plaintiff's cause of action is based upon the alleged negligence of the defendant railway company in backing one of its trains of cars against plaintiff's automobile at a public crossing in the city of Towner. The question of defendant's negligence and of plaintiff's contributory negligence and the extent of plaintiff's damages were submitted to a jury, and a verdict returned in plaintiff's favor for the sum of $ 350. In addition to a general verdict, the jury returned answers to 12 interrogatories, as follows:

"(1) Was the automobile in question fully stopped momentarily before the same was run upon the passing track where the collision occurred? A. No.

"(2) Was the engine whistle blown a short time before the collision, and while the engine was approaching on the same track upon which the collision occurred? A. No.

"(3) Was the engine bell rung before the collision, while the engine was approaching on the track upon which the collision occurred? A. No.

"(4) Was the brakeman or any employe of the defendant company on the box car or on the flat car in question at the time or immediately before the collision between the train and automobile? A. No.

"(5) At how many miles per hour was the train approaching the crossing in question when the flat car collided with the automobile? A. About 10 miles per hour.

"(6) Were the air brakes applied before or after the collision with the automobile? A. After.

"(7) Was the engine reversed before or after the collision? A. After.

"(8) Would an ordinary reasonable, prudent man, familiar with the operation of an automobile, have attempted to cross the said railway track with obstructions to the view as were present at that time at the time plaintiff and Mattie Pendroy crossed them in said automobile without stopping the automobile to examine for any impending danger from passing trains? A. Yes.

"(9) Was the plaintiff or Mattie Pendroy, either or both, guilty of any negligence whatever in the operating of the automobile or negligent in any degree in operating the automobile upon the Great Northern Railway passing track, just before or at the time of the collision of the train and automobile? A. No.

"(10) Were the defendant's employes guilty of any negligence in the operation of the train in question at the time of this collision or immediately before the collision between the train and automobile? A. Yes.

"(11) Did the engineer or other employes of the defendant company do anything to cause injury to others which an ordinary prudent and reasonable man would not have done doing the same work, or omit to do anything to prevent injury to others in operating the said train at the time of the collision in question, or shortly before and while approaching the place of collision with the automobile on the passing track, that ordinary prudent and reasonable men, doing the same work, would have done? A. Yes.

"(12) If you answer question No 11 in the affirmative, state fully of what such acts or omissions referred to in the said question consisted. A. Because they did not blow the whistle; because they did not ring the bell; because the air brakes were not applied at the proper time; because the reverse lever was not applied at the proper time; the brakeman was not on the flat car."

Thereafter defendant made a motion, as before stated, for judgment notwithstanding the verdict or for a new trial, which motion was denied, and judgment entered pursuant to the verdict.

Appellant has set forth 38 assignments of error relating to rulings in the admission and rejection of testimony, alleged errors in instructions to the jury and refusals to instruct, also to the ruling of the court in denying motions for nonsuit and for judgment notwithstanding the verdict, or for a new trial also, the order of the court in retaxing and allowing certain costs. Such assignments as have been argued in appellant's brief will be noticed in the order presented. The assignments not argued will be deemed abandoned. Before noticing these assignments, a brief statement of the facts may be useful. On July 7, 1906, the plaintiff, with two of his daughters and other persons, was riding about the city of Towner in plaintiff's automobile, and while in the act of attempting to cross defendant's railroad tracks at the intersection of said tracks with Main street, in said city, said vehicle was struck by defendant's train, consisting of two cars and an engine, which were backing over such crossing from the east. Plaintiff's daughter, aged about 18 years, was driving the automobile, and plaintiff was riding on the rear seat. The accident happened about 8 o'clock in the evening. The testimony tended to show that in approaching the crossing from the south the automobile was being driven at a speed of five or six miles per hour, and, when it reached a point within a few feet from the south track, the speed was changed to what is known as "low gear," which is a speed of less than five miles per hour. It was shown that the noise from the automobile as it approached the railroad tracks was about equal in volume to the noise made by an ordinary lumber wagon under the same conditions, and that by changing from the high to the low gear the noise was increased. On account of the grade crossing, it was necessary to change the engine to low gear. At the east of Main street, and on the south side of defendant's right of way, and along its south track, there were numerous obstructions to the view, consisting of elevators, elevator sheds, engine house, stockyards, etc. These structures and objects were upon the railroad station grounds. There were also other structures just south of said right of way and east of Main street, consisting of lumber yards and buildings, all of which structures and objects to a large extent...