Salewski v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
| Decision Date | 24 December 1920 |
| Docket Number | 358 |
| Citation | 181 N.W. 72,47 N.D. 64 |
| Court | North Dakota Supreme Court |
Rehearing denied January 18, 1921.
Appeal from the District Court of Stutsman County, Coffey, J.
Plaintiff appeals from the judgment and from an order denying a new trial.
Affirmed.
Knauf & Knauf, for appellant.
In submitting a case on special issues, it is necessary that all the issues should be found by the jury, and the court should by its charge explain the law upon any issue, where it is necessary for a thorough understanding of the question by the jury. Merzbacker v. State, 36 S.W. 308; Baxter v. R. Co. 80 N.W. 644; Schrunk v. St. Joseph, 97 N.W 947.
The lower court should have given the instructions necessary to inform the jury as to the issues, rules for considering the testimony, the burden of proof, and to make the jury clearly understand its duty. L. N. A. & C. R. Co. v Frawley, 9 N.E. 594; Mauch v. Hartford, 87 N.W 816; Burns v. Co. 19 N.W. 380.
The issue should have been submitted directly, tersely, and in some form. It was not. The failure was prejudicial and erroneous. McGowan v. R. Co. 64 N.W. 891; Byington v. City, 88 N.W. 26; Dohman v. Ins. Co. 71 N.W. 69; Andrews v. R. Co. 71 N.W. 372; Kreutzer v. R. Co. 40 N.W. 657; Klatt v. Lbr. Co. 66 N.W. 791.
The negligence of a third person contributing to the injury, which would not have occurred but for the defendant's negligence, cannot be imputed to the plaintiff. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676; Chambers v. R. Co. (N.D.) 163 N.W. 824; City v. Botzek, 94 C. C. A. 563, 169 F. 121; Union Pacific R. Co. v. Lapsley, 51 F. 174, 2 C. C. A. 149, 152, 16 L.R.A. 800; Little v. Hackett, 116 U.S. 366, 29 L.Ed. 652.
A special verdict should be limited to the case made by the pleadings, should find all the facts proven under the issues, and should not embody statements of conclusions of law or fact. A finding that one of the parties has been guilty of negligence has often been held by this court to be a mere statement of conclusion. Railway Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Railway Co. v. Spencer, 98 Ind. 186; Railway Co. v. Bush, 101 Ind. 582; Connor v. R. Co. 105 Ind. 62, 4 N.E. 411; Railway Co. v. Balch, 105 Ind. 93, 4 N.E. 288; Railway Co. v. Frawley, 110 Ind. 18, 9 N.E. 594.
Judgment reversed with directions to grant a new trial. C. St. L. & P. R. Co. v. Burger, 24 N.E. 981.
Lee Combs and S.E. Ellsworth (John L. Erdall and John E. Palmer, of counsel), for respondent.
"If the party fails to base or make the motion upon the basis authorized in the statute, he is held to have abandoned his motion for a new trial upon the grounds declared." King v. Hanson, 13 N.D. 85, 99 N.W. 1085.
The whole system of new trial seems to be based upon the theory that certain proceedings must be taken by the party applying for such new trial, and that, if these proceedings are omitted, his motion for a new trial fails. White v. Sacramento County, 72 Cal. 475, 14 P. 87; Cooney v. Furlong, 66 Cal. 520, 6 P. 388.
No error can be predicated upon the ruling of the court in denying the motion for a new trial, for the reason that, since no statement had been settled and allowed, there was nothing before the court to support such motion. Simmons v. Bunnell, 101 Cal. 223, 35 P. 770; Sulton v. Simmons, 100 Cal. 576, 35 P. 158; Keating v. Kennedy (Cal.) 138 P. 118.
In a special verdict it is the duty of the jury to find the facts only while the trial judge determines their legal effect. 38 Cyc. 1774; Morrison v. Lee, 13 N.D. 591, 102 N.W. 223; Swallow v. First State Bank, 35 N.D. 608, 161 N.W. 207; Russell v. Meyer, 7 N.D. 335, 75 N.W. 262; Guild v. More, 32 N.D. 474, 155 N.W. 44; Collins v. Mineral Point & N.Y. R. Co. (Wis.) 117 N.W. 1014; Cooper v. Ins. Co. (Wis.) 71 N.W. 606; Byington v. Merrill (Wis.) 88 N.W. 26.
"The purpose of a special verdict is to obtain separate findings on material, controverted issues, and questions are properly refused which submit to the jury every matter on which witnesses differ in the course of the trial. Ward v. Chicago, M. & St. P. R. Co. (Wis.) 78 N.W. 442.
A railroad company is not liable for injuries resulting from horses becoming frightened on a highway, at the sight of its engines, or the noises necessarily incident to the operation thereof. Walters v. Chicago, M. & St. P. R. Co. (Wis.) 80 N.W. 451; Abbot v. Kalbus (Wis.) 43 N.W. 367; Dotson v. Michigan C. R. Co. (Mich.) 153 N.W. 1066.
A railroad company is not liable for injuries caused by a team taking fright at the ordinary operation of a train upon its road. Railroad Co. v. Roberts (Neb.) 91 N.W. 707; Hendricks v. Fremont, E. & M. V. R. Co. (Neb.) 93 N.W. 141; Dewey v. Chicago, M. & St. P. R. Co. 75 N.W. 75.
The law is well settled that a railway company is not liable for the consequences of such noises on or in the vicinity of public streets, made by its locomotives or trains, as are incident to the operation thereof. Walters v. C. M. & St. P. R. Co. 104 Wis. 251, 80 N.W. 451; Dewey v. C. M. & St. P. R. Co. 99 Wis. 457, 75 N.W. 74; Cahoon v. C. & N.W. R. Co. 85 Wis. 572, 55 N.W. 900; Crowley v. Chicago, St. P. M. & O. R. Co. (Wis.) 99 N.W. 1017.
Where one person is driving with another for the mutual pleasure of both, with opportunity to see and equal ability to appreciate the danger, and is in fact looking out for herself, but makes no effort to avoid the danger, such person is chargeable with the want of care which results in injury. Bush v. Union P. R. Co. (Kan.) 64 P. 624; Willfong v. Omaha & St. L. R. Co. (Iowa) 90 N.W. 358.
In this action, the plaintiff seeks to recover damages for the death of his wife, which he alleges was occasioned by the negligence of the defendant. It is averred in the complaint and the evidence shows, that the plaintiff's wife, Tina Salewski, on June 27, 1917, was riding in a buggy which was being drawn by a single horse along Fourth avenue, in the village of Courtenay. The horse was being driven by a niece of the deceased. As they were about to cross the railroad tracks of the defendant in that village, the horse became frightened at a locomotive, so that it suddenly turned and threw the plaintiff's wife from the buggy and caused her serious injuries, from which injuries, it is alleged, that she died about two and one-half years later. The specific charge of negligence in the complaint is that the defendant had permitted sheds, buildings, and coal sheds to be constructed adjacent to and adjoining the railway track on the west side of Fourth avenue, in said village of Courtenay, "so that it was impossible for the said Tina Salewski or the said Hannah Bartkowski to see the north railway track lying immediately to the right and on the westerly side of said Fourth avenue, which said track crosses the said Fourth avenue in an easterly and westerly direction; and that owing to the aforesaid premises and the aforesaid conditions, all of which were negligently permitted, kept, and maintained by the said defendant and its tenants, and by reason of the said railway track being negligently permitted to be built and maintained immediately adjacent to and within 4 feet of said buildings, and as the said Hannah Bartkowski and Tina Salewski were riding along in a buggy drawn by said horse, in a southerly direction toward, and were about to enter upon and cross the said railway tracks aforesaid, and on the northerly side thereof, suddenly and without warning and with great negligence and without ringing any bell, and without blowing any whistle, and without giving any sign or signal, and without keeping or maintaining any gate at said crossing, and without keeping any flagman or having any flagman or switchman thereat, the agents of the said defendant company negligently, suddenly, and without warning whatsoever, carelessly and negligently pushed and moved its cars and engine with great speed and without any noise or warning, down upon the said avenue and crossing from a westerly direction, on said sidetrack and house track immediately adjacent to the said buildings, shed, and lumberyard, and suddenly and negligently scared the horse hitched to and drawing the said buggy in which the said Tina Salewski was riding, so that the horse suddenly turned and threw the said Tina Salewski from the said buggy, greatly and permanently injuring her shoulder, arm, back, and abdomen, nerves and spine, and caused her great pain and injuries and suffering, all through the negligence and want of proper and ordinary care on the part of the defendant, in its building and permitting the said buildings, sheds, lumber, and material to be placed and piled so close to its track and the said Fourth avenue, in said village of Courtenay, and its sudden pushing and shoving of said cars and engine belonging to said defendant with great negligence and without warning to the said Tina Salewski or said Hannah Bartkowski, and by reason of its failure to give some warning sign of the approach of its engine and cars upon said railway track and crossing, and by reason of its failure to properly protect and guard pedestrians and travelers upon said highway, street, and avenue, from injury by its engine and cars." The defendant by its answer placed in issue all the material allegations of the complaint, except the allegations relating to the corporate capacity of and the ownership by the defendant of the railroad in question. The answer also averred affirmatively that the injuries of the deceased, if any, were occasioned by her own negligence and...
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