Rebillard v. Minneapolis, St. P. & S.S.M. Ry. Co.

• Decision Date: 27 July 1914
• Docket Number: 4173.
• Citation: 216 F. 503
• Parties: REBILLARD v. MINNEAPOLIS, ST. P. & S.S.M. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 503

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

No. 4173.

United States Court of Appeals, Eighth Circuit.

July 27, 1914

C. J Murphy, of Grand Forks, N.D. (Murphy & Toner, of Grand Forks N.D., and William M. Anderson, of Devil's Lake, N.D., on the brief), for plaintiff in error.

Fred J Traynor, of Devil's Lake, N.D. (Flynn & Traynor and P. J McClory, all of Devil's Lake, N.D., and John L. Erdall and A. H. Bright, both of Minneapolis, Minn., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER and REED, District Judges.

TRIEBER District Judge.

This is an action for personal injuries sustained by the plaintiff below, who is the plaintiff in error, and will be referred to herein as the plaintiff, caused by an automobile, in which he was riding as a guest with a friend, running over an embankment into a deep cut made by the defendant in the construction of its road, and which was unguarded.

The allegations in the complaint are that the defendant constructed a line of railway through the city of Devil's Lake, N.D., which intersected a public highway located west of said city; that in building the railroad a cut 19 feet in depth at the point of intersection with the highway was made; that the cut was not bridged over, nor guarded in any way, so as to warn travelers upon the highway of the dangerous situation there existing; that on April 26, 1913, at 11:45 p.m. while plaintiff was riding as a guest in the rear seat of an automobile driven by the owner of the car over the said highway, the car was driven over the embankment into the cut, thereby injuring plaintiff.

The answer is a general denial, and also pleads contributory negligence on the part of the plaintiff. At the conclusion of the evidence the court gave a peremptory instruction in favor of the defendant.

The evidence introduced on the part of the plaintiff tended to show that one Doyon, who was the owner of an automobile, had invited the plaintiff to take a trip in his car, plaintiff bing associated with him in the mercantile business at Doyon, N.D.; that at Church's Ferry they picked up two additional guests, Mr. McLean, who was sheriff of that county, and Mr. Chambers, a newspaper man and postmaster at Church's Ferry. They left Church's Ferry about 8 o'clock shortly before dark; the car was provided with a prest-o-lite tank for lighting purposes; when about 8 or 9 miles from Church's Ferry the gas gave out; there was an oil lamp on the dash of the car, but neither wick nor oil in it; they proceeded in the dark about two miles to Grand Harbor, where they tried to get a prest-o-lite gas tank, or an ordinary lantern, but failed; they procured some kerosene and a wick there, but the latter was too large for the lamp on the car, and it was trimmed down so as make it do, but the light afforded by the lamp was very dim; they then proceeded on their journey to Devil's Lake, which was about 6 miles. Mr. McLean was the only person who was at all familiar with the roads in that section, but he had not been over this road for some time, and not since the defendant built its line and made the cut, several months before the accident occurred. They traveled over what seemed to be a prairie trail on the section lines, grown over with grass and weeds, and which had never been treated as a public road, nor as a street or alley of the city of Devil's Lake, within whose corporate limits it was, and where the accident occurred, and was but little traveled. Mr. McLean was standing on the running board of the car for the purpose of keeping a lookout, while the plaintiff and Mr. Chambers were sitting on the back seat of the car. Shortly before reaching the place of the accident they got off the trail, which was very indistinct. They then tried to get back on the trail, but a large rock was in the way, which caused them to turn toward the section line, and in attempting to get back to the trail the car went over the embankment. The cut does not cross the trail at right angles, but a little 'biased.' It is undisputed that, had the car been supplied with proper lights, the party would not have taken this trail, but would have used the public road, which would have enabled them to avoid this cut, or, if on the trail, the cut could have been seen in time to avoid the accident.

Section 2171, North Dakota Rev. Code, prescribes:

'Every automobile or motorcycle shall also be provided with lights, the automobile to carry not less than two lights in front of such machine, one of which to be on either side.'

The evidence is undisputed that the trail was not treated or used as a public road, nor, being within the limits of a city, as a street or alley. It was a part of the city which had never been platted, nor any streets or alleys dedicated. It is claimed on behalf of the plaintiff that the trail, being on the section lines, was under the provisions of section 2477 R.S.U.S. (U.S. Comp. St. 1901, p. 1567), and by reason of the acceptance of the grant of this strip as a public road by the territory of Dakota in 1877, a public road, and therefore it was the duty of the railway company to guard the cut at the intersection of this road. Several decisions of the Supreme Courts of South and North Dakota are cited to that point, but an examination of them shows that they are not in point, as all they decided was that the owner of the lands bordering on section lines takes them subject to the easement of the county and state to use them as public roads or streets, whenever they see proper to do so, a privilege which had never...