Peterson v. Fargo-Moorhead St. Ry. Co.

• Decision Date: 14 July 1917
• Citation: 37 N.D. 440,164 N.W. 42
• Parties: PETERSON v. FARGO-MOORHEAD ST. RY. CO.
• Court: North Dakota Supreme Court

37 N.D. 440

164 N.W. 42

PETERSON

v.FARGO-MOORHEAD ST. RY. CO.

Supreme Court of North Dakota.

July 14, 1917.

Syllabus by the Court.

Under section 6235, Compiled Laws of 1913, every one who offers to the public to carry persons, property, or merchandise is a common carrier of whatever it thus offers to carry. A street railway company, operating its lines of street railways upon the streets of a city, or extending from one city to another, or into rural communities, the principal business of which is conveying passengers from point to point on its lines for hire, is a common carrier.

The fellow servant rule, so far as it applies to common carriers, is by section 4804 of the Compiled Laws of 1913, abolished, and, in the language of such statute, “every common carrier shall be liable to any of its employés, or in case of the death of an employé, to his personal representative, for the benefit of his widow, children, or next of kin, for all damages which may result from the negligence of any of its officers, agents, or employés, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works.” Such statute is not unconstitutional, nor does it contravene any of the provisions of the state or federal Constitutions, nor does it contravene the Fourteenth Amendment to the federal Constitution, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Under section 4805, Compiled Laws of 1913, the questions of negligence and contributory negligence are exclusively questions for the jury, and where the negligence of the employer is gross, as compared with the contributory negligence of the servant, the fact that the servant has thus been guilty of contributory negligence shall not defeat the recovery of damages, but the damages, by reason of such contributory negligence of the servant, may be diminished by the jury in proportion to the amount of negligence attributable to such servant or employé.

When there is conflicting testimony as to a certain subject-matter involved in the litigation, from which minds of average men might draw different conclusions, the question is one for the jury. Held, in this case, there was such conflicting testimony, and the court erred in directing a verdict for the defendant.

As applied to the tribunal which tries issues of both law and fact, the court is not composed of the judge who is presiding at the trial. The “court” in such case is composed of the judge, who presides or is acting at the trial of the issues of law and fact in such court, and also of the jury. The judge is only one of the constituent parts of such court, and as such his duty is to define the law of the case. The jury is also a material constituent part of the court in such case, and its exclusive duty is to pass and render judgment upon the facts in the case. Each constituent element of the court, as just defined, has exclusive jurisdiction within its own sphere.

Where the conductor of a street car maintains an action against the defendant, his employer, a street railway company, on the ground of the defendant's negligence in keeping and maintaining its switch in a loose, improper, and imperfect condition, which caused the car of which the plaintiff was in charge to be thrown from the track while passing over such switch, the condition of the switch and the negligence of the defendant in maintaining such switch in its imperfect or improper condition, if it were so maintained, was a question exclusively for the jury; and where there was conflicting testimony as to the rate of speed of the car at the time such car passed over such switch, the contributory negligence of the servant or servants, if any, was also a question exclusively for the jury under the statute hereinbefore referred to. All questions of negligence and contributory negligence are exclusively for the jury.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Action by James Peterson against the Fargo-Moorhead Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

M. A. Hildreth, of Fargo, for appellant. Fowler & Green, of Fargo, for respondent.

GRACE, J.

This action is one maintained by the plaintiff against the defendant on the ground of negligence. The complaint is in the ordinary form, and alleges the negligence of the defendant, and its want of due care and attention to its duty, in that the defendant conducted itself so carelessly, negligently, and unskillfully that, by and through the carelessness, negligence, and fault of said defendant and its servants, it provided, used, and suffered to be used an insufficient, defective, and unsafe switch, frogs, and connecting appliances, on said switch leading from its main line on Eleventh Street North, near the intersection of Third Avenue North, in said city of Fargo, into the defendant's car barn. The bill of particulars furnished the defendant by the plaintiff, and which is a part of the complaint, is as follows:

“Pursuant to demand by defendant for a bill of particulars served upon plaintiff on December 31, 1915, demanding that said allegations in paragraph 4 of plaintiff's complaint be made more definite and certain; said allegations reading as follows: ‘That at all times hereinabove mentioned the said defendant conducted itself so carelessly, negligently, and unskillfully that by and through the carelessness, negligence, and default of said defendant and its servants it provided, used, and suffered to be used an unsafe, defective, and insufficient roadbed, unsafe, defective, and insufficient switches, frogs, and connecting appliances, at its said switch leading from its main line on Eleventh Street North, near the intersection of Third Avenue North, in said city of Fargo, into said car barn, of all of which it had notice, but the said defects and the dangers attendant thereupon were unknown to the said plaintiff,’ we respectfully submit the following:

First. That the roadbed was unsafe, defective, and insufficient in this: That the defendant's track at said point was not properly laid, or, if in the first instance said rails were properly laid, they had become through use and wear and tear unsafe, to the knowledge of defendant; that said rails and joints were loose and insecure to such an extent that the weight of defendant's car in passing over the same would cause said rails to depress and sink and become springy and unlevel; that said rails had become worn and unfit for use, and were not laid upon a proper foundation; that said defendant's roadbed was otherwise unsafe, defective, and insufficient.

Second. That the switches, frogs, and connecting appliances at said switch, as alleged in the complaint herein, were unsafe, defective, and insufficient in this: That the same had become worn, broken, and unsafe for use; that they were not modern appliances used for such purposes; that said switches, frogs, and appliances were not equipped with springs to make them safe and secure for traffic; that for defendant's convenience, and through the negligence of the defendant, the said defendant used or caused to be used, in connection with said switches, frogs, or appliances, a common piece of gas pipe, which was loosely inserted between the rails, for the purpose of holding said switches, frogs, and appliances in place; that the cars, in passing over said switches, by reason of their weight and otherwise, crushed and flattened said gas pipe, and caused the same to slip out of place, and throw said switch at an improper time while defendant's car was passing thereover; that said switches, frogs, and connecting appliances were otherwise unsafe, defective, and insufficient.

Third. That the plaintiff, by furnishing this bill of particulars, in no manner waives any of his rights under his complaint herein, but expressly reserves all rights thereunder, and as a part hereof the plaintiff does hereby refer to and make a part hereof his complaint herein, in no manner limiting the scope thereof, and does hereby further except to the right of the defendant to the bill of particulars as demanded.”

The plaintiff alleges that he has suffered great and permanent injuries, external and internal, and great mental and physical pain and distress, and is prevented from attending to his duties as aforesaid, and alleges that he has spent large sums of money for medical attendance and nursing, and has lost all the wages he otherwise would have earned, and will continue to be subject to all the foregoing, all to his damage in the sum of $25,000.

Defendant, by way of answer, sets up a general denial to the allegations of the complaint and bill of particulars, admitting only that it is a corporation operating street cars propelled by electricity at the point mentioned in the complaint and other places in the city of Fargo. The answer further contains allegations by way of defense, setting forth the alleged contributory negligence of the plaintiff, the carelessness and negligence of the fellow servant or servants of plaintiff, and that the plaintiff knew the nature, character, and condition of said switch and appliances referred to in said complaint and bill of particulars, the manner in which the same was operated, the dangers incident to the operation of street cars over and upon such switch and appliances, and assumed all such dangers, and that injuries and damages resulting from the operation of street cars were assumed by plaintiff as an incident of employment as conductor for defendant.

The material facts in the case are in substance as follows: Plaintiff brought this action against the defendant to recover for personal injuries. The plaintiff was employed by the defendant as a street railway conductor, and his duties were to assist in the operating of street cars in the capacity of a conductor. While plaint...