Rober v. N. Pac. Ry. Co.

Decision Date23 May 1913
Citation142 N.W. 22,25 N.D. 394
PartiesROBER v. NORTHERN PAC. RY. CO.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Where, in a suit for death by wrongful act, it is claimed that the deceased was run over by an engine of a railway company at a street crossing in an incorporated city, and a portion of the body of the deceased was found in a frog located from four to six feet from the planking in said crossing and within the limits of the highway, and the planking of said crossing did not extend, as required by section 4321, R. C. 1905, across the full length of the said highway, but only for about 16 feet, and there were no eyewitnesses to the accident, and some of the evidence showed that on the night in question a man could have been seen at a distance of 30 feet and the outlines of a box car at a distance of from 150 to 200 feet, and the engineer of the engine, which it is claimed occasioned the loss of life, testified that he had switched past the crossing a number of times during said night, but that when he crossed the same he rang his bell, and that there were lights both in front and at the rear of his said engine, but the evidence also showed that the night was very cold and stormy, that a strong wind was blowing with a velocity of 30 to 45 miles an hour, that the thermometer registered 18 degrees below zero, that dust and gravel and débris were flying, and the crossing was not lighted, and that, about an hour before the time at which the accident must have occurred, a hackman drove close to an engine on the track, which the evidence tended to show was the one which ran over the deceased, without seeing same or hearing any bell or signal sounded, and the next morning blood was found upon the tender of a switch engine of the defendant, held, that the presumption of ordinary care, which is based upon the instinct of self-preservation, was not overcome as a matter of law, and that the question of contributory negligence was one for the jury, as well as the question as to whether there was negligence on the part of the defendant which was the proximate cause of the injury.

The burden of proving contributory negligence is upon the defendant.

There is a legal presumption that one has not committed suicide.

There is no legal presumption that a crime has been committed, or that under circumstances such as those in the case at bar the deceased was murdered and his body thrown upon the track.

It is the duty of a railway company to keep a proper lookout for travelers at a highway crossing which is within the limits of a city.

In such a case evidence is admissible that an engineer, who is charged with having failed to ring his bell and to give proper crossing signals at a particular time, failed to do so at the same crossing and on the same night and within an hour of the alleged accident and while engaged in the same general switching transaction.

In a suit brought under section 7686, R. C. 1905, for death by wrongful act, the introduction of mortality tables is not necessary to a recovery of substantial damages, either to show the expectancy of the life of the deceased or of his beneficiaries. At the common law, standard tables, and in North Dakota the Carlisle tables, are proper and competent evidence for the purpose of aiding the jury, but the introduction is not absolutely necessary.

Evidence examined, and held to sustain the verdict both as to the question of negligence and the damages awarded.

Additional Syllabus by Editorial Staff.
On Petition for Rehearing.

A verdict for plaintiff, in an action for wrongful death, will not be disturbed on appeal for excessiveness, unless it is so excessive as to indicate partiality, passion, or prejudice.

The word “stormy” does not necessarily include either rain or snow. It includes a violent disturbance of the atmosphere attended by wind, rain, snow, hail, or thunder and lightning.

In an action for a wrongful death to which there were no eyewitnesses, plaintiff is entitled to the benefit of the presumption that deceased, moved by the love of life and the ordinary instinct of self-preservation, was in the exercise of care to that end.

Where, in an action for wrongful death from being struck by a train at a highway crossing, the evidence showed the existence of a frog in the track at the highway, that portions of the body and clothing of deceased were found in the frog, and that a shoe was missing from one of his feet, the question whether the frog was the proximate cause of the accident was for the jury.

Appeal from District Court, Morton County; Nuchols, Judge.

Action by David J. Rober, as administrator, etc., against the Northern Pacific Railway Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed, and rehearing denied.

This action is brought by David J. Rober, the father of, and as the administrator of the estate of, Alfred J. Rober, deceased, for the killing of the said Alfred J. Rober on the night of the 31st day of December, 1909, at Mandan, N. D. The defendant made the usual motion for a directed verdict and a motion for a new trial. It, however, introduced no evidence in its behalf, and submitted no written instructions, and there were no exceptions to the charge. A verdict was rendered for $2,000 in favor of the plaintiff, and a judgment rendered thereon is here sought to be reversed.

The deceased was, at the time of his death, a young man of 26 years of age, of good health, and in the full possession of all of his faculties. There is no evidence whatever in the record that he was a drinking man, or that on the night in question he had used intoxicating liquors. He had been making his home with his father's family practically all of his life. There were seven children in all, three girls and four boys, of whom the oldest was 28 years of age and the youngest 15. The youngest child was a girl of 15, and the next in age was a boy of about 19. These two, with a boy of about the age of 21, a girl of about the age of 24, and the deceased, of about the age of 26, lived with their parents. The two older daughters were married and lived elsewhere. Alfred Rober, the deceased, lived at home. He had lived there practically all of his life. The earnings that he derived from time to time from his own efforts, and which for some time prior to his death were earned in working with his father in the concrete business, and were estimated at about $4 a day, were “practically all used as a family purse.” His earnings and those of his father were all turned “into the family purse,” “and were not divided.” The father was 53 years of age. The age of the mother is not given, but the fact that the oldest child was at least 28 years old would lead one to infer that she was at least 46 years of age. There is no direct testimony as to the joint earnings of the father and son, though it is shown that the father, during most of his lifetime, had been doing carpenter work and concrete work.

Deceased, on the night of December 31, 1909, and at about 11 o'clock, left his father's house to go to a dance at the opera house. The house was 2 1/2 blocks from the railroad crossing, where the body of the deceased was found at about 12 o'clock-between 12 and 2 o'clock. The night was stormy and cold. There was a wind of a velocity of from 30 to 40 miles an hour, though there was probably no snow flying. The thermometer registered 18 degrees below zero. There is some testimony that on the night in question one could tell a man 30 feet away and make out the outline of a box car 150 to 200 feet distant. One witness, however, testified that he drove within a few feet of an engine about an hour prior to the accident without seeing it or hearing the bell rung. The deceased approached the railway track, which ran east and west, from the north. There was a clear view of the yards 100 feet south of the crossing. The wind was blowing from the northwest. There is evidence that a switch engine of the company ran up and down the track and across the crossing practically all night, and that this engine was seen between 10 and 11 o'clock with no tail light on it; also that between 10 and 11 o'clock this engine almost ran into a witness; that it had then no tail light; and that the witness heard no gong or bell sounded. This, however, was objected to as being prior to the supposed time of the accident. Blood was found upon a switch engine in the yards of the company on the following morning, though the particular switch engine was not identified as being the one last mentioned. There is evidence, however, that another engine and crew were also operating in the yards besides the one last mentioned, though whether it crossed the particular crossing was not testified to. There were no gates at the crossing, and there was no flagman. There were no lights, except the switch lights. In the middle of the crossing, and between the rails, there were planks about 14 or 16 feet in length. There was, however, no sidewalk across the track. From 4 to 6 feet east of these planks was a frog with the V pointing to the west and towards the crossing, and which, though not on the planking, was within the roadway. At the east end of this frog, which covered 4 or 5 feet, were found clothes and parts of the body of the deceased at about 1 o'clock in the morning. Between the frog and the crossing was a piece of leg and a piece of backbone. The frog was full of clothes and parts of flesh. At the east end of the frog there was found a foot of the right leg with a shoe on it. Part of the body and the left leg was lying at the north side of the track between the frog and the planking. The left leg was west of the end of the plank. The other leg was east of the frog. Neither of the legs, however, was in the frog. The shoe belonging to the left foot was found removed from the foot, close to the main part of the body and right beside the frog, at the east end. Pieces of the body were...

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