Pewonka v. Stewart

• Citation: 99 N.W. 1080,13 N.D. 117
• Decision Date: 12 May 1904
• Court: North Dakota Supreme Court

99 N.W. 1080

13 N.D. 117

JOHN PEWONKA, A MINOR, BY FRANK PEWONKA, GUARDIAN AD LITEM, v. ALEX STEWART

Supreme Court of North Dakota

May 12, 1904

Appeal from District Court, Traill county; Pollock, J.

Action by John Pewonka, by Frank Pewonka, his guardian ad litem against Alex Stewart. Judgment for defendant and plaintiff appeals.

Reversed.

Judgment reversed, a new trial granted, and cause remanded.

W. J Courtney and Morrill & Engerud, for appellant.

That a street or highway may become such by public use without dedication, is well established. Mason v. Sioux Falls, 51 N.W. 770; (S.D.); Coulter v. Great Northern Ry. Co., 5 N.D. 568, 67 N.W. 1046; Walcott Tp v. Skauge, 6 N.D. 382, 71 N.W. 544.

As to whether a given obstruction in a street renders it unsafe for public travel, is purely a question of fact which should be left to the jury. Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427.

A case should never be taken from the jury when there is a controverted question of fact presented by the evidence. Vickery v. Burton, 6 N.D. 245, 69 N.W. 193; McRae v. Hillsboro Nat. Bank, 6 N.D. 353, 70 N.W. 813; Pirie v. Gillett, 2 N.D. 255, 50 N.W. 710; Slattery v. Donnelly, 1 N.D. 264, 47 N.W. 375; Cameron v. Great Northern Ry. Co., 8 N.D. 125, 77 N.W. 1016.

Where one is injured by the joint agency or co-operation of several persons, all, who are in any manner connected with the wrongful act, are severally liable for such injury. Doremus v. Root et al., 54 L. R. A. 649; Cuddy v. Horn, 10 N.W. 32; Wyss v. Grunert, 83 N.W. 1095; Patterson v. Wabash, St. L. & P. Ry. Co., 19 N.W. 761.

John Carmody and William Barclay, for respondent.

Dedication of a public highway from use and implied consent must be based on a clear intent, and the acts and circumstances relied on to establish it must be unequivocal and convincing; and unless such intent can be found in the facts and circumstances of the particular case no dedication exists. Morrison v. Marquardt, 24 Iowa 35; Dillon Mun. Corp. (4th Ed.) section 636; Elliott on Roads and Streets, 99.

There being no highway, plaintiff was a trespasser and defendant owned him no legal duty. Where there was no duty, there was no negligence. Akers v. Chicago, St. P., M. & O. Ry. Co., 60 N.W. 669; O'Leary v. Brooks Elevator Co., 7 N.D. 554, 75 N.W. 919, 47 L. R. A. 677.

Plaintiff was only a licensee on the premises and he accepts whatever peril he incurs in the use of such license. Indiana, B. & W. R. Co. v. Barnhart, 115 Ind. 399, 16 N.E. 121.

OPINION

MORGAN, J.

This is an action to recover damages on account of injuries received by the plaintiff through the alleged negligence of the defendant. The facts as developed at the trial are as follows: The plaintiff was driving over what is alleged in the complaint to be a public highway of the village of Galesburg, at 4 o'clock a. m. of November 21, 1902, and, while going home from a dance, ran against a post placed in the center of the traveled portion of the highway, and was thrown from his carriage and injured. The post was placed in the highway by the defendant, or some other person engaged in moving a schoolhouse over said highway. The placing of posts in the highway was necessary in order to move the schoolhouse in the manner in which it was being moved. The posts were placed in the highway about 90 feet in front of the schoolhouse, and were about 8 inches in diameter, and, as placed, were about 3 feet above the ground. The traveled part of the highway was about one rod in width, and its whole width about three rods at the point where the posts were. The highway had been traveled by the public generally for at least 16 years, and was traveled by persons coming to the village from the south, or in going therefrom in that direction. On the west side of the highway are grain elevators and lumber yards; on the east, stores and other buildings. It runs through the business portion of the village, and is traveled as much as any street of the village. On November 21st the schoolhouse was being moved over this highway, and at the close of the work of moving it on that day was left in the street, without taking any precautions to warn travelers by signals of any kind that the posts and school house were in the highway. The leaving of these posts on the traveled highway without warning signals is the negligence charged against the defendant as the proximate cause of the plaintiff's injury and damage.

The defendant denies that he caused the injury, and claims that the plaintiff was not rightfully upon the highway at the time of the injury, for the reason that such highway was on the right of way of the Great Northern Railway Company, and further, that plaintiff was injured in consequence of his own negligence at the time of the injury. The evidence shows that this highway was upon such right of way, but it does not show whether the whole of it is on such right of way or not. We shall treat the case as though the evidence showed that the whole of the highway at this point is upon the right of way. There is no evidence that any part of the street has ever been laid out as a highway. The evidence is undisputed, however, that it has been generally and continuously traveled by the public. At the close of the taking of testimony the district court directed a verdict for the defendant, and judgment was entered dismissing the action. The plaintiff has appealed from such judgment, and assigns as error the direction of a verdict for defendant. Defendant claims that plaintiff cannot recover for three reasons: (1) That the highway on which the injury occurred was not a legal highway, and that plaintiff was not rightfully thereon, because it was upon the right of way of the railway company; (2) that defendant was not in charge of the moving of the schoolhouse; and (3) that plaintiff was injured in consequence of his own contributory negligence. We are satisfied that a verdict should not have been directed in defendant's favor upon either of the grounds mentioned. Relating to the ground first mentioned, it is undisputed that the highway had been used for travel by the public without interruption for over 16 years. It was used by pedestrians and for vehicles as much if not more than any street of the village. There is testimony in the record that the highway had been graded, but by whom is not stated. Without deciding what the relative rights of plaintiff and the railway company would have been in case the injury had been caused by the negligence of the company, we have no hesitation in holding that the defendant is liable for any injury to the plaintiff caused by his negligence. The fact that the plaintiff was upon a highway not legally laid out or established cannot be a justification for his own negligence. That the highway was not legally laid out, and was upon the railway company's right of way, was in no manner the cause of the injury. That fact did not contribute in any way to the cause of the collision. It was not remotely or proximately the cause of the injury to the plaintiff. If the plaintiff be considered a licensee or a trespasser, the defendant must be considered the same. They were upon the highway with equal rights, and owed each other the same measure of duty and care. Before the fact that the highway in question had not been legally...