Stone v. N. Pac. Ry. Co.

• Decision Date: 10 February 1915
• Citation: 29 N.D. 480,151 N.W. 36
• Parties: STONE v. NORTHERN PAC. RY. CO. et al.
• Court: North Dakota Supreme Court

29 N.D. 480

151 N.W. 36

STONE

v.NORTHERN PAC. RY. CO. et al.

Supreme Court of North Dakota.

Jan. 29, 1915.

On Petition for Rehearing, Feb. 10, 1915.

Syllabus by the Court.

Appeal from a judgment of $5,268, damages and costs, a recovery for personal injuries to plaintiff arising out of a collision of an automobile driven by plaintiff and a passenger train of the defendant company operated by co-defendants, employés. Defendants contend that plaintiff was guilty of contributory negligence, precluding his recovery, in failing to observe the oncoming train and avoid collision, under the proof that he had opportunity to observe the train while he was yet from 23 to 27 feet from the track and approaching it. The jury may have found from the evidence: That freight cars on two of the four tracks at the crossing on Third street in Bismarck at the time obstructed plaintiff's view of the main line track in the direction from which the train was approaching; a 20-mile per hour wind was blowing, carrying the roar of the train away from plaintiff; the day and the crossing were dusty; the train was running at a speed of 30 miles per hour to within 60 or 90 feet of the crossing, when the emergency brakes were applied. Held, under all the circumstances, the question of contributory negligence was for the jury, and plaintiff is not guilty of contributory negligence as a matter of law.

Sufficient foundation was laid in the testimony of witness Davies to permit of his estimate of the speed of the train at the time of the collision.

It was not error to admit in evidence a speed ordinance of the city of Bismarck, as sufficient foundation had been laid.

It was not error to deny admission in evidence of a photograph of a portion only of the crossing, taken from some distance to the side of the main line track, and perhaps a misleading view of the situation.

Appeal from District Court, Burleigh County; Nuessle, Judge.

Action by Frederick W. Stone against the Northern Pacific Railway Company, a corporation, and others. From judgment for plaintiff, defendants appeal. Affirmed, and rehearing denied.Watson & Young and E. T. Conmy, all of Fargo, for appellants. F. H. Register and George M. Register, both of Bismarck, and S. E. Ellsworth, of Jamestown, for respondent.

GOSS, J.

From a judgment of $5,268, damages and costs, as a recovery for personal injuries to plaintiff through their negligence, defendants appeal. The usual averments of negligence are made, with answer by denials and charges of contributory negligence. The alleged negligence pleaded in the complaint covers all negligence disclosed by the proof. Certain errors are also assigned on reception of testimony over objection. But the principal question, as stated in appellant's brief, is that of contributory negligence, in whether the uncontroverted and admitted facts establish plaintiff's negligence per se, contributing to his injury.

The injury was received, on May 4, 1911, in a crossing accident, where the railway tracks cross Third Street within the city of Bismarck, and as plaintiff crossed the tracks in an automobile. The train demolished the auto and hurled plaintiff a considerable distance, rendering him unconscious, fracturing his skull, and seriously injuring him. The verdict is not challenged as excessive. Instead, the question is only that of liability.

[1] Plaintiff had resided near Bismarck for 11 years. He was engaged in dairying He was familiar with the crossing and the situation thereabouts as to obstructions to view and any possible danger likely to be encountered. He had owned his International automobile about a month and understood its operation. About 2:30 o'clock that afternoon he crossed the railway tracks on Fifth street, going south to Front street, the first street running east and west south of the tracks, where he turned westward, and, after going about a block, stopped to allow a passenger to alight, after which he immediately continued on about a block further to the intersection of Third street with Front street. Here he turned on Third street, going north and up a gradual incline, running in low gear. It is 170 feet from where he turned onto Third street to where the first of the four tracks of the defendant company was crossed, and after crossing which he continued on 40 feet further, when he was struck by the engine of a special passenger train running at right angles to Third street and the direction he was traveling. The accident occurred about 2:37 p. m. A strong 29-mile per hour wind was blowing from the southeast, carrying any sound that might have been made by the train away, instead of toward plaintiff. Approximately a dozen bystanders saw the occurrence and have testified. Defendant's depot is situated a block and a half east of Third street crossing, the scene of the accident. The train was coming from the west. Estimates of its speed at Third street vary from 12 to 30 miles per hour. The Government Weather Bureau buildings, immediately adjoining and on the north of defendant company's main track, consist of a barn 400 feet west of Third street and a house 680 feet west of the same point. Estimates are that the train was making 30 miles per hour or more in passing these buildings. At the time in question a regular passenger train was about due, or a little overdue, and plaintiff had knowledge that a passenger train was scheduled to be due from the west. He had no knowledge concerning the particular train of some eight or ten coaches, which was not running on any regular schedule time, but on telegraphic order. It was not intended that the train would stop at Bismarck, unless on signal for orders.

The train was on the main line and on the north one of four tracks at Third street crossing. These tracks were 14 feet apart from center to center. According to the testimony offered by plaintiff, upon the two southernmost tracks were freight cars, extending into and upon the highway and to within about 6 feet from the roadway where teams travel over the crossing. These freight cars were of sufficient height and width to entirely block off the view to the west and northwest and to plaintiff's left, as he came up the grade and until he crossed the second track, or approximately to that point, and within 24 feet of the south rail of the main track, upon which the collision happened. Immediately to the south of the tracks was situated the Marshall oil warehouse, extending out approximately to the street line. West of this warehouse were two oil tanks 25 or 30 feet high, 50 feet from the railway tracks, and to the west of these tanks was another building. In the neighborhood of the tanks was also a loading platform 3 or 4 feet high. While testimony for the defendants, with a photograph in evidence offered by them, is to the effect that only the second track from the south was occupied by cars and with the cars to the west of the street line of the crossing, yet there is testimony tending to establish that within 15 or 20 minutes of the time of the accident, and before the picture was taken, a switch engine had moved the freight cars from where they had been immediately previous to the accident; and the presence of the switch engine in the immediate vicinity, and that it had moved over at least tracks Nos. 1 and 2 at the crossing before the photograph was taken, is admitted. There is a conflict in the evidence on whether the position of the cars was changed before the photograph was taken. What is said hereafter will be upon the assumption that such a change was made, as the jury must be assumed to have found in their finding for the plaintiff. Hence immediately prior to this accident there were cars upon both tracks 3 and 4, the two southernmost tracks, and which were extending well out to within 6 feet of the road over which the automobile traveled, and which, together with the warehouse, loading platform, oil tanks, and rise of grounds, all taken together, wholly obstructed plaintiff's view to the northwest and rendered it impossible for him to see any portion of the main line track No. 1, upon which the accident occurred, during that period of time within which he was traveling a distance of 75 feet on Front street before turning upon Third, and also while he was traveling uphill on Third street over 176 feet until he crossed the track No. 3, occupied by freight cars and 24 feet from the main line track. When he reached this point 24 feet from the main track, had plaintiff immediately looked to the west, he could have seen the train; but he could not have seen it until then. It was approaching the crossing upon a slightly downgrade, and, according to the train crew, steam had been cut off some little time before, and it was rolling without power applied. A strong wind was blowing from plaintiff toward the train, and the reasonable probabilities are that he could not have heard it coming. It was a dusty day, and dusty at the crossing. As plaintiff ascended the hill, immediately upon reaching the top he was upon the southernmost track, and then about 45 feet from the main line track. He looked eastward toward the depot, when passing upon the track, and says he looked westward. Concerning this plaintiff testifies that he was running upon low speed and about 5 miles per hour, with the auto operating well and under his full control, with he having nothing to do but to steer it and keep a lookout. The following questions were asked him:

“Q. Now, as you passed on the track, did you look east and west? A. Yes, sir; I did. Q. See any train coming from the east? A. No. Q. Were you listening at that time for the approach of trains from either way? A. Certainly was; yes. Q. Did you hear the sounds of bells or whistle or roar of a train upon the track? A. No. Q. You heard nothing whatever? A. Nothing at all, until the last thing. Q. As you passed the crossing upon the second track from the south, and your auto pushed on toward the third...