Rattie v. Minneapolis, St. P. & S. S. M. Ry. Co., No. 5357.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: BURKE
• Citation: 55 N.D. 686,215 N.W. 158
• Parties: RATTIE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
• Docket Number: No. 5357.
• Decision Date: 18 August 1927

55 N.D. 686
215 N.W. 158

RATTIE
v.
MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

No. 5357.

Supreme Court of North Dakota.

Aug. 18, 1927.

Syllabus by the Court.

Where the plaintiff's evidence, in an action for damages in a personal injury action, shows no negligence on the part of the defendant, and does show that the negligence of the plaintiff was the proximate cause of his injury, a judgment of dismissal on the merits, if error, is error without prejudice, and will not be disturbed on appeal.

Where the evidence conclusively shows that a person injured at a railroad crossing must have seen an approaching train if looking, his testimony that he looked, and did not see the train, is legally incredible, and will be disregarded.

In an action for injury at a railroad crossing, where the plaintiff's evidence shows that he had a clear vision of the railroad track for at least a quarter of a mile in the direction from which a train of cars was coming; that he looked all the time in that direction, while he was driving from a point 30 steps from the railroad, until his team and wagon were entirely inside a gate that was 5 steps from the track, his team then being within a few feet of the track; that he then turned to look in the opposite direction, and was at that instant struck with a train coming from the direction he had previously been looking, shows such gross negligence on the part of the plaintiff as to preclude a recovery.

Appeal from District Court, McIntosh County; George M. McKenna, Judge.

Action by Fred Rattie, by his guardian ad litem, Minnie Rattie, against the Minneapolis, St. Paul & Sault St. Marie Railway Company. From a judgment of dismissal on the merits, plaintiff appeals. Affirmed.

[215 N.W. 158]

I. A. Mackoff, of Ashley, and Curtis & Remington, of Lisbon, for appellant.

James Morris, of Carrington, for respondent.

BURKE, J.

This is an action for damages for injury to the plaintiff on a private railroad crossing of the defendant's railroad. At the close of the plaintiff's testimony, and after the plaintiff had rested his case, the defendant moved the court to dismiss the action, for the reason that plaintiff's testimony had failed to establish negligence on the part of the defendant, and that the injury to plaintiff was the result of his own negligence. The plaintiff claimed that the motion amounted to a motion for a directed verdict and objected to said motion on the merits and under the statute, claiming that the evidence conclusively shows negligence on the part of the defendant and no negligence on the part of the plaintiff, and that the negligence of the plaintiff, if any, was a question for the jury. The motion having been duly submitted to the court upon the theories of the plaintiff and defendant, and the court having granted the motion dismissing the action on the merits, the plaintiff appeals.

The only question in the case involves a review of the evidence, and it appears therefrom:

That at the time of the accident the plaintiff was 18 years of age, and employed on the farm of John Weber. On the 24th day of December, 1924, he was hauling manure and straw on the Weber farm from the barn on the south side of the defendant's railroad track over a crossing thereon, and to the north side of said track, a distance, he says, of 30 steps from the track, where he piled the manure. He knew that there was a regular train due to pass over the crossing about 1 o'clock and knew that this train was late. “It was stormy that day,” the plaintiff says; “there was a little blizzard; snowing a little.” “There is a curve three quarters of a mile east of the railroad crossing. The land in the vicinity is rolling, but it is down grade from the curve to the crossing, a distance of three quarters of a mile.” “There is a cut between the curve and the crossing beginning a quarter of a mile east of the crossing, but at no place is the cut as deep as the height of a railroad train.” After the plaintiff had unloaded his load on the north side of the track and started back to the crossing, he says, “When I

[215 N.W. 159]

come back I looked every direction and could see no train coming, and all at once the horses was on the track, and they got scared, and so the accident happened.” “I did not see any train coming; it didn't whistle; I did not know it hit me before I came to myself; I did not see the train at all.”

On cross-examination, the plaintiff states:

“It was a little blizzard and snowing; the wind was from the northwest; not blowing very hard. When I started back from the manure pile, I could see about half a mile. I saw the Weber buildings and the crossing ahead. I had been out there since before 1 o'clock. I did think about the train being due as I went north across the track, and I knew it hadn't gone yet. If the train had gone by while I was at the manure pile, I think I would have heard it. It was about 2 o'clock when the accident happened. It was a cold day. I had on a fur cap pulled down over my ears. I left the manure pile and drove straight down to the crossing. The team was trotting. I looked along the track east. I did not see anything. The track is fenced at the crossing. The gate was open. I looked east when I started from the place where I unloaded at the manure pile. I was looking east all the time from the time I left the pile until I looked west when I got inside the gate. The gate is about 5 steps from the railroad track, and the horses and wagon were...