State of North Dakota v. Northern Pac. Ry. Co.
| Decision Date | 25 January 1949 |
| Docket Number | No. 13777.,13777. |
| Citation | 171 F.2d 506 |
| Parties | STATE OF NORTH DAKOTA, FOR AND ON BEHALF OF NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU et al. v. NORTHERN PAC. RY. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lanier & Lanier and E. M. Stern, all of Fargo, N. D., for appellants.
Conmy & Conmy, of Fargo, N. D., for appellee.
Before SANBORN, THOMAS and JOHNSEN, Circuit Judges.
Edward J. Hanish, an employee of the Noel Construction Company, a road building contractor, brought suit, as plaintiff, in the district court against the Northern Pacific Railway Company for damages for personal injuries caused by the alleged negligence of the defendant. The State of North Dakota appears as a party plaintiff to protect its right of subrogation pursuant to the Workmen's Compensation Laws of that state. R.C.1943, 65-0101 et seq. At the conclusion of plaintiff's case the defendant moved the court to direct a verdict in its favor on two grounds, viz., (1) that the testimony showed that the negligence of the plaintiff Hanish was the sole cause of his injuries, and (2) that there was no proof of any negligence of the defendant. The motion was sustained, judgment was entered dismissing the action on "the merits and with prejudice to the plaintiff", and this appeal followed.
The accident in which plaintiff Hanish received the injuries for which he seeks damages occurred on September 4, 1947, about two miles west of the town of Sterling, North Dakota, where a highway running in a northwest-southeast direction crosses the east-west tracks of the defendant railway company. At that point there are two railroad tracks, the north one being the main line and the south being a passing track. Looking east from the crossing one can see an approaching train first as it comes round a curve at a distance of 1,200 feet.
On the date named Hanish was moving a dragline machine in a northwest direction across the tracks when a freight train approaching from the east struck the rear end of the machine and Hanish was injured.
The dragline machine operated by Hanish is a heavy machine used for excavating earth or gravel and removing the spoil and dumping it in piles or loading it on vehicles. It consists of a revolving body on a crawler base frame. The body includes a cab in which the power machinery and the operator are housed. A crane or boom approximately 30 or 35 feet in length to which a shovel is attached projects from the front of the cab. The top of the cab is about 10 feet above the ground, and the overall length of the machine is about 45 feet. When at work or moving along the highway the operator is seated on a pivoted seat in the cab within reach of the controlling levers. At his left and in the rear end are doors through which he can see and through which he can enter or depart. To see out of the rear door it is necessary for him to turn on the pivoted chair and take a step or two to the rear. The maximum speed of the machine when moving from one place to another is about two miles an hour.
The facts and circumstances relating to the accident on September 4, 1947, were told by Hanish. He testified that he was 40 years of age; that he had been an operating dragline engineer continuously for 10 years with five years' preparatory service as an apprentice and oiler. It is the business of an oiler to go along with the engineer on a dragline machine as an assistant. At the time of the accident he had been working for the Noel Construction Company about two years as dragline engineer. On the morning in question he received orders to move the machine from a clay pit south of the railroad to a gravel pit north of the defendant's tracks. When he approached the crossing he sent his oiler across the tracks ahead of him to stop approaching traffic coming from the north until he got across with the machine. He could see out of the rear of the cab to the south. When he approached the tracks he stopped when the front end of the crane or boom was about 8 or 10 feet south of the passing track. The front or shovel end of the crane was then about 8 feet above the ground, and the cab about 45 feet south of the track. He got out of the cab and walked around to the front end of the crane. The oiler was on the north side of the tracks opposite Hanish and the machine. Hanish then looked both ways, did not see or hear any train and saw no smoke. He walked back to the cab, looked both ways again, saw nothing and got into the cab through the door on the left side, and immediately started the machine. He looked ahead and saw the oiler standing there on the north side of the tracks. As he was almost across the "oiler threw up his hands and his mouth came open", and Hanish then knew he was in trouble. He could not see out of the right or east side of the cab, so he pivoted on the seat, looked out the back window of the cab and saw the head of a locomotive approaching from the east approximately 75 feet distant. He immediately turned to the door and jumped, but was struck and injured. He was asked:
On cross-examination he testified that before starting across the railroad tracks he did not send any one to stop trains; that he knew that it took quite a while to get the machine across the tracks; that he did not know what kind of a train hit him or anything about it; that from the time he started the machine from its position about 50 feet south of the main line track he did not look for an approaching train until he saw his oiler throw up his hands and appear frightened. He could have looked before that had he pivoted on his chair and looked out the back door of the cab, but he did not do so. Had he looked and seen the engine at a distance of 200 feet he could have jumped out of the rig and escaped any injury.
Alfred Jensen, a witness of the plaintiffs, testified that he arrived at the scene of the accident about 30 minutes after it occurred; that the dragline machine was then lying 75 to 100 feet from the intersection of the highway and the railroad; that a freight train was stopped there and that he counted 30 cars and the locomotive which had passed the crossing to the west side thereof.
The oiler assisting Hanish was not called as a witness.
The complaint charged negligence in the following language: "Plaintiffs allege that when defendant's train was at a point about one-half mile away from the intersection where the accident occurred, the engineer in charge of said train or engine could see, or by the exercise of ordinary care, should have seen, the big, unusual, unwieldly dragline machine on the tracks and plaintiff in a place of eminent imminent peril, in time to have avoided said accident, by the exercise of ordinary care; that defendant negligently ran its train into the said machine and injured plaintiff Edward J. Hanish * * *"
The defendant in its answer denied negligence generally and alleged that Hanish's injury was caused by his own negligence and that his own negligence contributed thereto.
In this court the plaintiffs contend that the case should have been submitted to the jury upon two theories: (1) that the defendant was negligent in that the crossing where the collision occurred was inherently dangerous requiring the defendant's train to come round the curve east of the crossing under control sounding warnings of its approach; and (2) that the case should have been submitted on the doctrine of the last clear chance.
The first of these contentions is without merit for two reasons. First, the burden was upon the plaintiff to make a prima facie case, and there is no evidence in the record to the effect that the engineer in control of the locomotive failed to sound the whistle and give the usual warnings as he approached the crossing; and, second, the complaint does not allege that the crossing was inherently dangerous, requiring any extraordinary precautions in the operation of trains over it. It is familiar law that an issue not pleaded cannot be submitted to a jury. A plaintiff...
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