Sherlock v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company
| Decision Date | 20 November 1912 |
| Citation | 138 N.W. 976,24 N.D. 40 |
| Court | North Dakota Supreme Court |
Appeal by plaintiff from a judgment of the District Court for Barnes County, Burke, J., dismissing the complaint in an action brought to recover damages for the death of plaintiff's intestate.
Affirmed.
M. A Hildreth, for appellant.
This case should have been submitted to the jury, and it was error to direct a verdict for the defendant. Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531; Coulter v. Great Northern R. Co. 5 N.D. 568, 67 N.W. 1046; Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W 1016, 5 Am. Neg. Rep. 454; Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N.D. 367, 121 N.W. 830; Hollinshead v. Minneapolis, St. P. & S. Ste. M. R Co. 20 N.D. 642, 127 N.W. 993; Washington & G. R Co. v. McDade, 135 U.S. 554--571, 34 L.Ed. 235--241, 10 S.Ct. 1044; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679; Texas & P. R. Co. v. Cox, 145 U.S. 593, 36 L.Ed. 829, 12 S.Ct. 905; Gardner v. Michigan C. R. Co. 150 U.S. 349, 37 L.Ed. 1107, 14 S.Ct. 140; Goodwin v. Central R. Co. 73 N.J.L. 576, 64 A. 134, 20 Am. Neg. Rep. 433; Martin v. Southern P. R. Co. 150 Cal. 128, 88 P. 701.
Deceased was not guilty of contributory negligence as a matter of law. Atchison, T. & S. F. R. Co. v. McClurg, 8 C. C. A. 322, 19 U.S. App. 346, 59 F. 860; Ramsey v. Louisville, C. & L. R. Co. 89 Ky. 99, 20 S.W. 162; Baltimore & O. R. Co. v. Griffith, 159 U.S. 603, 40 L.Ed. 274, 16 S.Ct. 105; Strong v. Sacramento & P. R. Co. 61 Cal. 329, 11 Am. Neg. Cas. 196; Goodenough v. Pennsylvania R. Co. 55 N.J.L. 596, 27 A. 931; Chicago, B. & Q. R. Co. v. Lee, 87 Ill. 454.
Lee Combs and L. S. B. Ritchie (A. H. Bright, of counsel), for respondent.
Deceased was guilty of contributory negligence, and no recovery can be had for his injury and death. 2 Thomp. Neg. 1656. See also Scott v. St. Louis, I. M. & S. R. Co. 79 Ark. 137, 116 Am. St. Rep. 67, 95 S.W. 490, 9 Ann. Cas. 212; Payne v. Chicago & N.W. R. Co. 108 Iowa 188, 78 N.W. 813; Schneider v. Northern P. R. Co. 81 Minn. 383, 84 N.W. 124, 9 Am. Neg. Rep. 74; Olson v. Northern P. R. Co. 84 Minn. 258, 87 N.W. 843; West v. Northern P. R. Co. 13 N.D. 229, 100 N.W. 254; Chicago, R. I. & P. R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Schofield v. Chicago, M. & St. P. R. Co. 114 U.S. 615, 29 L.Ed. 224, 5 S.Ct. 1125; Northern P. R. Co. v. Freeman, 174 U.S. 379, 43 L.Ed. 1014, 19 S.Ct. 763; Shatto v. Erie R. Co. 59 C. C. A. 1, 121 F. 678, 13 Am. Neg. Rep. 698; Horn v. Baltimore & O. R. Co. 4 C. C. A. 346, 6 U.S. App. 381, 54 F. 301; Swanger v. Chicago, M. & St. P. R. Co. 132 Iowa 32, 109 N.W. 308; Pyle v. Clark, 25 C. C. A. 190, 49 U.S. App. 260, 79 F. 744, 2 Am. Neg. Rep. 100; Chicago, R. I. & P. R. Co. v. Pounds, 27 C. C. A. 112, 49 U.S. App. 476, 82 F. 217; Zimmerman v. Hannibal & St. J. R. Co. 71 Mo. 489; MacLeod v. Graven, 19 C. C. A. 616, 43 U.S. App. 129, 73 F. 627, 7 Am. Neg. Cas. 396; Southern R. Co. v. Smith, 40 L.R.A. 746, 30 C. C. A. 58, 52 U.S. App. 708, 86 F. 292; Chicago, R. I. & P. R. Co. v. Still, 19 Ill. 508, 71 Am. Dec. 236; Hanover R. Co. v. Coyle, 55 Pa. 401; Terre Haute & I. R. Co. v. Clark, 73 Ind. 168; Pennsylvania R. Co. v. State, 61 Md. 108; Brown v. Milwaukee & St. P. R. Co. 22 Minn. 165; Hamblin v. New York & N. H. R. Co. 195 Mass. 555, 81 N.E. 258; Cincinnati, N. O. & T. P. R. Co. v. Farra, 13 C. C. A. 602, 31 U.S. App. 306, 66 F. 500; Elliott v. Chicago, M. & St. P. R. Co. 150 U.S. 245, 37 L.Ed. 1068, 14 S.Ct. 85; Haas v. Grand Rapids & I. R. Co. 47 Mich. 402, 11 N.W. 216; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Pennsylvania R. Co. v. Beale, 73 Pa. 504, 13 Am. Rep. 753; Henze v. St. Louis, K. C. & N. R. Co. 71 Mo. 636; Fletcher v. Atlantic & P. R. Co. 64 Mo. 489; Gorton v. Erie R. Co. 45 N.Y. 660; Baltimore & O. R. Co. v. Hobbs, Md. , 19 Am. & Eng. R. Cas. 337; Lehigh & W. Coal Co. v. Lear, 6 Sadler (Pa.), 272, 9 A. 267; Allen v. Pennsylvania R. Co. 9 Sadler (Pa.), 382, 12 A. 493; Seefeld v. Chicago, M. & St. P. R. Co. 70 Wis. 216, 5 Am. St. Rep. 168, 35 N.W. 278; Rothe v. Milwaukee & St. P. R. Co. 21 Wis. 258; Sheffield v. Rochester & S. R. Co. 21 Barb. 339; Steves v. Oswego & S. R. Co. 18 N.Y. 422, 12 Am. Neg. Cas. 331; Butterfield v. Western R. Corp. 10 Allen, 533, 87 Am. Dec. 678; Reynolds v. Great Northern R. Co. 29 L.R.A. 695, 16 C. C. A. 435, 32 U.S. App. 577, 69 F. 808; Griffie v. St. Louis, I. M. & S. R. Co. 80 Ark. 186, 96 S.W. 750; Pittsburgh, C. C. & St. L. R. Co. v. Ferrell, 39 Ind.App. 515, 78 N.E. 988, 80 N.E. 425; Continental Improv. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Texas & P. R. Co. v. Gentry, 163 U.S. 353, 41 L.Ed. 186, 16 S.Ct. 1104; St. Louis & S. F. R. Co. v. Barker, 23 C. C. A. 475, 40 U.S. App. 739, 77 F. 810; McGrath v. New York C. & H. R. R. Co. 59 N.Y. 469, 17 Am. Rep. 359; Rodrian v. New York, N. H. & H. R. Co. 125 N.Y. 526, 26 N.E. 741; Strong v. Grand Trunk Western R. Co. 156 Mich. 66, 120 N.W. 682; Shufelt v. Flint & P. M. R. Co. 96 Mich. 327, 55 N.W. 1013.
Statement
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 snow plow, engine, and caboose, moving from 8 to 10 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 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 1 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 easterly 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 took...
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