Ulrikson v. C., 7757
| Decision Date | 11 July 1936 |
| Docket Number | 7757 |
| Citation | 64 S.D. 476,268 N.W. 369 |
| Court | South Dakota Supreme Court |
| Parties | OBEL ULRIKSON, as Administrator of the Estate of Bessie Ulrikson, deceased, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILWAY COMPANY, et al., Appellants. |
Appeal from Circuit Court, Lincoln County, SD
#7757—Reversed
Hepperle & Fuller, Aberdeen, SD
T.M. Bailey, Sioux Falls, SD
Attorneys for Appellants.
Danforth & Davenport, Sioux Falls, SD
Attorneys for Respondent.
Opinion Filed Jul 11, 1936
On November 24, 1932, Thomas Ulrikson, accompanied by his wife, Bessie Ulrikson, was driving his automobile upon a street in the City of Canton and in attempting to cross the tracks of defendant railway company collided with a train, whereby Thomas Ulrikson was severely injured and his wife was killed. She died intestate, leaving as her survivors Thomas and three adult children. A son, Obel Ulrikson, was duly appointed administrator of her estate and instituted the present action in the circuit court pursuant to sections 2929-2931, RC 1919, to recover, for the exclusive benefit of the surviving husband and children, damages for her death, claiming the same to have been caused by the negligence and wrongful acts of the defendants, who are the railway company and its employee, the fireman on the locomotive of the train involved in the collision. Defendants answered separately, each interposing a general denial and each pleading that the accident was caused and contributed to by the negligence of Bessie Ulrikson and of Thomas Ulrikson and did not arise from any negligence or fault of the defendants or either of them. Upon the trial of the issues thus joined, defendants moved separately at the close of all the testimony for directed verdicts, and both motions were granted. Verdict upon all the issues in favor of the defendants was accordingly returned by the jury by direction of the court and judgment subsequently entered thereon. Thereafter, however, the learned trial judge, upon application of plaintiff, made and entered an order granting a new trial and from such order defendants have now appealed to this court.
Appellants maintain, of course, that the verdict directed in their favor and the judgment entered thereon should stand, and that the court erred in granting the new trial. They submit in support of their position four general propositions, as follows:
First, that there is no evidence sufficient to support a verdict finding actionable fault or negligence on the part of appellants or either of them.
Second, that if it should be believed that the evidence would support a finding of negligence on the part of appellants (which appellants do not concede), nevertheless the undisputed evidence conclusively shows that no conduct of appellants was the proximate cause of the accident.
Third, that the evidence conclusively shows contributory negligence on the part of Thomas Ulrikson, the driver of the car and surviving husband, and since he is one of the beneficiaries of this action under the statute (section 2931, RC 1919) his contributory negligence bars recovery either in behalf of himself or of any other of said beneficiaries. Hazel v. Hoopeston-Danville Motor Bus Co. (1923) 310 Ill. 38, 3o ALR 491.
Fourth, that recovery is barred in any event because the undisputed evidence conclusively shows contributory negligence upon the part of Bessie Ulrikson, the decedent.
We will proceed to the consideration of these propositions in inverse order.
In viewing the facts for the purpose of determining the validity or invalidity of appellants’ fourth contention, it is essential to bear in mind that the burden of establishing contributory negligence is upon the appellants. Further, in considering the testimony as a whole, and in drawing inferences therefrom all conflicts, if any there be, must be resolved in favor of respondent, and the view most favorable to respondent must be taken throughout. Respondent is not entitled, however, to have credence given to testimony which is demonstrated as unsound by physical and mathematical facts appearing unquestioned elsewhere in the record. Hickey v. Mo. Pac. Ry. Corp. (CCA 8th Circuit, 1925) 8 F. (2d) 128. In the light of these established principles, we think the facts disclosed by the present record may fairly be stated as follows.
Thomas Ulrikson was a retired farmer 70 years of age. His wife, Bessie Ulrikson, was 66 years of age. They had resided in the town of Canton in Lincoln County, SD, for about 19 years. Both of them appear to have had approximately normal hearing and vision for their respective ages. Particularly with reference to Bessie Ulrikson, Thomas Ulrikson testified:
A married daughter of the Ulriksons, 38 years of age, and one of the beneficiaries of this action, testifying with reference to her mother said:
Thomas Ulrikson owned and operated a Cadillac automobile of the four-door sedan type with glass windows all around, which was in good operating condition with effective brakes. He had driven a car since 1911 and had always driven a Cadillac. He made frequent use of the automobile and he himself thought, and his wife was justified in believing, that he was skillful and careful in the operation thereof, as the common phrase goes, “a good driver.” Bessie Ulrikson did not drive the automobile.
Bartlett Street is a graveled public highway running north and south through the town of Canton and one of its main traveled thoroughfares. The right of way of defendant railway company through the town of Canton crosses Bartlett Street substantially at right angles and approximately upon the highway grade. At the point of its intersection with Bartlett Street the right of way carries two nearly parallel railroad tracks 15 feet apart, running in an easterly and westerly direction. The track lying farthest to the north upon the right of way runs in a westerly direction for some little distance and then swings north and proceeds to Sioux Falls. The other runs in a northwesterly direction from Canton to Mitchell and thence to the Black Hills, and is known in the record as the I. & D. (Iowa and Dakota Division) main line track. A daily passenger train from the west, running from Mitchell to Chicago on the I. & D. main line, was scheduled to arrive at the Canton station at 4:20 p. m., which would require it to cross the Bartlett Street intersection about 4:16. The railway company did not maintain a flagman, guard gates, or automatic signal at the Bartlett Street crossing.
The residence of the Ulriksons, was approximately 6½ blocks north and 3½ blocks east of the Bartlett Street crossing. During the entire period of his residence in Canton Thomas Ulrikson had owned a farm south of the town and during most of that period his three married children had resided south of Canton. His customary route in going out to his farm and in going out to visit his children brought him onto Bartlett Street from the east about 2½ blocks north of its intersection with the railroad. Reaching Bartlett Street at that point, it was his habit to turn onto such street and proceed south thereon across the railroad tracks and thus out of town. He testifies in that regard:
“I always drove Bartlett Street. ... As a rule I made at least one trip a week to my own farm on an average, and on an average once a week to one or the other of the children.
“During the course of a year I probably got out to my farm and to my children over Bartlett Street 100 to 150 times. I would say a hundred anyhow. That was always the street we drove: I made such trips ever since I have been permanently located here in town for about the last 19 years. My wife mostly went with me.
“So far as I and my wife are concerned we would go out on an average something like 52 times a year. In the 19 or 20 years, my wife and I have driven out in the neighborhood of a thousand times. ... I knew Bartlett Street crossing having been over it perhaps something more than a thousand times.
Further, with reference to the railroad tracks and the traffic thereon, he says:
On November 24, 1932, the train referred to came into Canton from the west on the I. & D. main line track (being the southernmost of the two tracks upon the right of way) on schedule time, reaching the Bartlett Street crossing at approximately 4:16 p.m. It consisted of a locomotive and tender, a...
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