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

• Decision Date: 20 November 1912
• Citation: 24 N.D. 40,138 N.W. 976
• Court: North Dakota Supreme Court
• Parties: SHERLOCK v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

24 N.D. 40

138 N.W. 976

SHERLOCK

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

Supreme Court of North Dakota.

Nov. 20, 1912.

Syllabus by the Court.

A driver about to cross a railroad track at a public crossing in the country is charged with knowledge that such crossing is a dangerous place, and that it cannot be assumed that cars are not approaching from either direction. He is bound to assume that cars are coming until satisfied by direct evidence to the contrary, and to this end must vigilantly use his senses of sight and hearing, and do all that ordinary care and prudence would dictate, having in view the surrounding circumstances, to avoid injury, regardless of whether any signal is given by an approaching train.

Where the exercise of ordinary precautions of looking and listening and making an intelligent use of one's faculties to inform himself as to the approach of a train is neglected, and when the taking of such precautions would have avoided an accident, negligence is conclusively established, in the absence of conflict in the evidence on these subjects.

Where an injury is due to the negligence of both parties, no recovery can be had.

The greater the danger by reason of weather conditions rendering it difficult to see a train or hear its approach, the greater the caution necessary to constitute ordinary care.

The law of self-preservation may usually be considered in favor of the plaintiff, where doubt exists as to his ability to see or hear an approaching train, but when no such doubt appears, and it is clear that had he looked and listened he could have seen such train, and the evidence shows that he was not in the exercise of ordinary care, no inference arising from the instinct of self-preservation is applicable in his favor.

While there may be exceptional circumstances excusing a party from the observance of the rule regarding looking and listening, it is held that the facts of this case disclose no such circumstances.

It is the traveler's duty to look in both directions at a crossing for trains, and this rule is emphasized where there are two tracks which render it possible for trains to approach from either direction, or pass each other at the crossing.

The only diversion of attention excusing failure to look and listen at a railroad crossing is where the attention is so irresistibly forced to something else as to practically deprive a traveler of the opportunity to look and listen.

The exclusion of evidence of witnesses as to the possibility of their hearing the signals of the train, if any were given, just prior to the accident, was nonprejudicial, when it was the duty of the deceased to look and listen, regardless of signals.

While great care should be exercised in receiving photographic exhibits showing elevations, they may be received when properly verified, and it is clear that conditions were the same when taken as when an accident occurred.

Plaintiff's husband was killed at a railway crossing December 14, 1906. Photographic exhibits offered in evidence were taken the following June. The record discloses that the conditions were the same as when the accident occurred except as to snow, and the removal of one building on the side of the highway not necessary to consider in relation to the issues. Held, that the difference in conditions, under the circumstances disclosed, was immaterial.

Plaintiff's husband was driving a team and grain tank north on a highway toward a railroad crossing at a slow walk, and was killed by a train on the crossing approaching from the east at from eight to ten miles per hour. The view from the highway for at least 1,700 feet south of the crossing of the railway toward the east was unobstructed except by two houses on the east side of the highway. It was 277 feet from the most northernly house to the crossing. For that distance the view was quite unobstructed. The deceased, while passing at least between the house and the crossing, looked steadily toward the northwest. He wore a fur coat with a collar turned over his ears. The wind was from the northwest. He made no effort, at least during that distance, to ascertain the approach of any train from the east. Held that, assuming that no signal was given by the train, he was guilty of contributory negligence, and not exercising his senses of seeing and hearing, precluding a recovery for his death.

Appeal from District Court, Barnes County; Burke, Judge.

Action by Mary Sherlock against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This appeal was taken from a judgment of the district court of Barnes county in favor of the defendant, and from an order denying new trial. The action was for damages for causing the death of Thomas Sherlock at defendant's crossing, and the defense was contributory negligence of said Sherlock. At the close of the case the court, on motion, directed a verdict in favor of the defendant. The facts disclosed are about as follows:

The deceased, Thomas Sherlock, was the husband of Mary Sherlock, plaintiff. He was employed by a milling company in Valley City as a teamster. December 14, 1906, while in such employment, he was engaged in hauling wheat from the elevator in North Valley City to the mill of his employer in Valley City, and while driving a tank wagon north was hit by a train from the east, consisting of a snowplow, engine, and caboose, moving from eight to ten miles per hour. The elevator and mill were somewhat over a mile apart. He had been engaged in this occupation for some days, and was thoroughly familiar with the road leading between the two points, and with the crossing over the railroad track where he was killed. He was in the entire possession of his faculties. In making his trips he passed along a public highway, north from the city of Valley City to the elevator at North Valley City, which elevator was on the north side of defendant's railroad track, which, at the point of crossing, consisted of its main line and a side or passing track. The road over which he traveled crossed the Sheyenne river 1,700 feet south of the railroad crossing, and was graded up a foot or more above the level of the prairie, and there was snow upon the road one foot or over deep.

Defendant's line runs, at the point of crossing, a little south of east, and the crossing is nearly at right angles. This railroad is visible from the road, over which the deceased traveled, a mile or farther in an easternly direction, and can be seen from the highway at least all the distance from the Sheyenne river crossing, to the highway crossing where the accident occurred, except for two houses situated on the east side of the highway and facing west, and possibly a shack or barn close to the track, but which, on account of being low posted and setting below the track, either did not obstruct the view or obstructed it to so slight an extent as to be immaterial. The grade of the railroad track for practically the entire distance visible from the highway was considerably elevated above the surrounding prairie.

It was 277.8 feet from the track to the north line of the north house, to which reference has been made, and the distance between that and the other house, 14.75 feet. The north house had a front toward the highway of 18.25 feet, north and south, and was 24.23 feet in depth, east and west, and the more southerly house was 25.25 feet by 24.5 feet. The north house was a story and a half, and the south one one story high. The barn nearer the track was a little over 20 feet in length, east and west, and about 12.25 feet north and south. The total height of the building was 10.3 feet. It stood 94 feet south of the center of the main track, and the ground on which it stood was considerably lower than the track.

The depot building at North Valley City is 649.46 feet nearly west of the crossing. The deceased was standing up in the wagon, and had on a fur coat with collar turned up over his ears. His back, according to the uncontradicted evidence, was turned toward the east, and he appeared to be watching the depot, or a train standing near and west of the depot, apparently taking water or fuel. The day was cold, with considerable wind from the northwest and some snow blowing, and perhaps falling, but the amount of snow and storm was not sufficient to prevent a fairly clear view of the track to the east. He was seen and watched by several witnesses during more or less of the time from his passing the houses until he reached the place of the accident. One Weimer, who resided in the north house, testified that he was out of doors when the accident occurred, and saw the deceased pass his house and drive toward the track, and saw the accident; that his team was going at a slow walk, and he did not try to hurry them when he reached the track; that the deceased could see down the track for a considerable distance, but that he was looking toward the depot.

A daughter of this witness also testified to seeing deceased coming, and witnessing the accident; that she first saw Sherlock when opposite the north house; that he was looking toward the depot, and continued to look toward the depot and did not turn toward the east; that, where she was on the ground, she could see east a quarter of a mile; that the little barn might have obstructed the view a little ways; that she could see the railroad bridge a quarter of a mile east; that deceased was not looking toward the incoming train, but kept his head toward the west; that his team was walking.

One Kuester testified that at the time of the accident he was in the house farthest south; that he saw Sherlock driving past; that, when he went past, he was standing up, looking toward the depot. He saw the accident plainly. He did not see Sherlock all the time between his house and the track.

One Briggs testified that he was near the depot when the accident occurred; that he saw Sherlock about 200...