Severtson v. N. Pac. Ry. Co.

• Decision Date: 30 November 1915
• Citation: 155 N.W. 11,32 N.D. 200
• Parties: SEVERTSON v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

32 N.D. 200

155 N.W. 11

SEVERTSON

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

Nov. 30, 1915.

Syllabus by the Court.

It is error to take a case from the jury and to direct the verdict for the defendant where, though the facts are seriously disputed, there is evidence to show that a railway train was stopped on or immediately before a street crossing in a city, and that plaintiff's intestate, an old man, immediately before said accident was seen struggling in the middle of the track a short distance in front of the engine, and either on the sidewalk which crossed the track or some seven or eight feet beyond it, and that after he began to so struggle, the railway company started its engine and the cars thereto attached and ran over said deceased.

A railway company has no right, when it stops a train upon a public street of a city, to start it without giving ample warning and acquainting itself of the fact as to whether or not there are travelers upon said street or at or near said crossing who may be in danger.

It is a matter of fact for the jury, and not of law for the court to decide, whether a traveler upon a public street of a city is guilty of contributory negligence who attempts to cross a railroad track behind and south of a freight or gondola car attached to an engine pointing away from him and with several cars north and attached thereto, and when such engine or train of cars is standing still either on or near said crossing, and there are no gates or flagmen at the same.

Appeal from District Court, Walsh County; Kneeshaw, Judge.

Action by Olmfreder Severtson against the Northern Pacific Railway Company. From judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.M. A. Hildreth, of Fargo, and H. C. De Puy, of Grafton, for appellant. Watson & Young and E. T. Conmy, all of Fargo, for respondent.

BRUCE, J.

This is an appeal from a judgment which was entered on a verdict directed for the defendant company. The action is brought by a widow to recover damages for the death of her husband, which was occasioned by an accident at a railway crossing in the city of Grafton, N. D. The deceased, Joseph Severtson, was 72 years of age. He had a crippled foot, which in walking he raised three or four inches and kicked out to the side. The tracks of the railway company run north and south, and on the day of the accident the deceased approached the same from the west, walking along the south side of what is known as Fifth street, in the city of Grafton, with his head down, and apparently, according to some witnesses, not looking for a train. The train came from the north, and his view to the north was clear and unobstructed; that is to say, from a point 47 feet from the center of the track he could see up the track 72 feet; 20 feet from the track he could see up the track 100 feet; 15 feet away he could see up the track 120 1/2 feet; and 10 feet away he could see up the track 169 1/2 feet. Forty-five feet east of the crossing there appears to have been a house track, and at the crossing two tracks, on the westerly one of which the train which occasioned the accident was running, and which train consisted of a coal car, north of which were a tender and engine, and still north of which were several box cars. This train was being backed from the north down the side track. Two witnesses, Barr, a blacksmith, and Given, a drayman, testified as to having first seen the deceased at a distance of about 8 feet from the track.

Given testified that he was looking directly at the deceased from a point about 80 feet west of the place of the accident and while driving on Fifth street. He was thus in a position not merely to clearly see the deceased, as the day was clear and it was broad daylight, but to gauge the distance between the deceased and the approaching car, and to tell when the car started to move. He testified that he first saw the deceased a distance of 6 or 7 feet from the crossing, and at the time he was walking probably 7 or 8 feet south of the sidewalk, which is constructed on the south side of Fifth street. He testified that the train was backing up the track at the rate of 3 or 4 miles an hour; that Severtson was walking with his head down; that he had a pail, a saw, and a loaf of bread; that he did not seem to pay any attention to the train; that he did not look north to see where the train was coming from; that he (Given) was approaching the crossing all the time as he wanted to get over; that the deceased did not pay any attention to the train; that he was on the middle of the track when he was hit, and about 8 or 9 feet south of the sidewalk; that immediately after the accident he (the witness) examined the crossing, and that it looked like any other crossing, and there were no holes or anything else there; that it was a nice clear day, and the sun was shining.

The witness Barr testified that at the time of the accident he was standing at the front door of his shop, which appears to have been about 125 feet west of the crossing and on the north side of the street; that when he first saw the deceased the latter was about 5 or 6 feet from the crossing; that at the time the train was backing down the track at a rate of about 4 or 5 miles an hour; that he saw Severtson step onto the track and turn around and throw up his hands, and that then the train hit him; that the deceased was then in about the center of the track; that when approaching the track the deceased was walking with his head partly down; that the witness did not see him look until he got onto the track; that at the time he was struck the deceased was about 5 or 6 feet south of the south edge of the sidewalk; that the deceased had a hitch in his leg and threw it out when he walked.

One Hoag, the driver of a grocery wagon, was also a witness to the accident. He testified that at the time of the accident he was sitting on his delivery wagon on the house track east of the crossing, right in the middle of the crossing, and about 40 feet from where the accident occurred; that the deceased, Severtson, was coming east; that when walking Severtson would throw out one foot and then plant the other one; that it was difficult to make Severtson hear, and one had to shout pretty loud; that he examined the crossing after the accident; that he saw a few identations on the ground-none with reference to the planking.

One Cabots, the engineer of the train, testified that he was coming with his train from East Grand Forks and going to Pembina; that he stopped at Grafton and unloaded some freight; that after that he shoved his train over the crossing and backed it south to the Sixth street crossing; that he then cut off his engine and went and did some switching on the mill track, that is, north of the Fifth street crossing; that his engine was facing north, and that he was on the east side of the engine, that is to say, on the right-hand side; that he had one car behind the engine and four cars ahead; that his train had not stopped from the time he left the mill spur coming south and until after the accident had occurred; that he was watching both in front and behind to see about the track; that ahead of him was a car and tender going south; that the box car and tender did not interfere with his view west of the track; that he could not see west of the track for a considerable distance over the tank of the tender; that he was looking, but he did not see a soul; that the bell was ringing as he was approaching the crossing; that his train was traveling possibly 4 or 5 miles an hour; that a train of that size traveling at the rate it was traveling could be stopped in a car length or a car and a half; that each car was 40 feet; that his brakeman, Koochenbecker, was riding on the gondola car; that there was a local freight train north of the Fourth street crossing; that it had come from the north, Pembina; that if his train was coming one mile an hour, it would take possibly a car length to stop it; that he had been engaged in moving cars possibly 20 minutes before the accident; that he had been switching across that crossing 10 minutes, or perhaps 15; that his train had not stopped from the time he pulled back until he stopped after the accident. The record also shows that the mill spur referred to was more than a block north of the place of the accident.

The fireman, P. M. Brantl, testified that his attention was first called to the accident when he heard a farmer hollering and when his engine was south of the Fifth street crossing; that he was sitting on his box looking south toward the crossing and toward the switch, looking both north and south; that there was the brakeman, Koochenbecker, on the south end of the car; that he saw him pretty close to the crossing; that he was standing on the car end; that he was inside of the car, the gondola; that he was looking out south; that as he got up to the crossing the brakeman disappeared from his line of vision; that he did not know where he went; that it was a clear day.

The witness Bradford testified that he was a brakeman on the train; that as they pulled up to the depot as they arrived at Grafton they unloaded some freight and pulled their train up to the Fifth street crossing; that he then cut off their engine and ran down the main line and back across the elevator track and backed over the Fifth street crossing and coupled onto an empty gondola, and went across the Fifth street crossing to the mill track; which was more than a block to the north; that they picked up some cars at the mill track; that they were coming down off the mill track with the engine and one car behind the engine, that would be south of the engine and six cars ahead of it; that they backed up and across the said crossing, and backed up to the main line, and backed up again to clear the switch; that the train had run the length of two and one-half cars when they picked up the empty gondola car; that...