Welch v. Fargo & M. St. Ry. Co.

• Citation: 24 N.D. 463,140 N.W. 680
• Court: United States State Supreme Court of North Dakota
• Decision Date: 07 March 1913
• Parties: WELCH v. FARGO & M. ST. RY. CO.

24 N.D. 463

140 N.W. 680

WELCH

v.FARGO & M. ST. RY. CO.

Supreme Court of North Dakota.

Feb. 1, 1913.

On Petition for Rehearing, March 7, 1913.

Syllabus by the Court.

Where there is a substantial conflict in the evidence, negligence and contributory negligence are ultimate questions of fact for the jury, and not of law for the court. Where, therefore, a special verdict is submitted in a personal injury case, it is not only proper, but necessary, that questions involving such ultimate facts should be submitted and answered.

Evidence examined and held to support findings of jury and the judgment of the court.

On Petition for Rehearing.

The doctrine of discovered peril, or of the last clear chance, may be urged under a general allegation of negligence.

Where a hack driver was driving within a short distance of and parallel to the street railway track, and within the track of the car, though not of the rail, and was overtaken and run down by a rapidly approaching car which sounded no gong and gave no warning of its approach, and the evidence showed that, though he started to turn across the track of said railway just before the accident, he would have been run down whether he had so turned or not, and that the motorman could have seen him during all of the time he was on said street and in the track of said car, and that when first turning upon said street, and while about 480 feet from the scene of the accident, he turned to look back for an approaching car and saw none, but did not look again, though he listened for approaching cars, held, that the court will not presume contributory negligence, as a matter of law, and that in such a case the doctrine of the last clear chance will be held to apply.

Additional Syllabus by Editorial Staff.

While special interrogatories should not call for conclusions upon merely evidentiary matters, they may properly call for a conclusion in the nature of an ultimate constitutive fact necessary to support the judgment.

Appeal from District Court, Cass County; Pollock, Judge.

Action by Thomas H. Welch against the Fargo & Moorhead Street Railway Company, a corporation. From an order denying defendant's motion for judgment notwithstanding the verdict, or for a new trial, and from judgment for plaintiff, defendant appeals. Affirmed, and petition for rehearing denied.

This is an appeal from an order denying appellant's and defendant's motion for judgment notwithstanding the verdict, or for a new trial, and also from the judgment entered herein in favor of the respondent. It is a personal injury case. The plaintiff and respondent was a hack driver in the city of Fargo, and had been such for a number of years. He was familiar with the appellant's system of street cars, and was an experienced driver. On the day of the accident, he delivered a passenger at the Metropole Hotel, and then drove some little distance west-wardly to Broadway, and then south along Broadway and on the west side to Front street, thence on the north side of the defendant's tracks west on Front street. Broadway and Front street intersect at right angles a short distance south of the Northern Pacific tracks, which in turn intersect Broadway. The street car line of the defendant and appellant runs along Broadway and continues in a westerly direction along Front street, which latter street runs east and west. The plaintiff, on reaching Front street, kept on the right side-that is to say, on the north side of the street car track-and drove along and upon said street at a slow trot, and, according to some of the evidence, at least, within a few inches of the north rail of the track. It was proved that the street car which occasioned the accident extended over three feet beyond such outer rail of the track, so that, according to the weight of the testimony, the plaintiff and respondent was at no time without the area of the street car, though there were times when he was not actually upon the track. It was a rainy morning. As he turned west on Front street, he looked back as far as the Northern Pacific tracks, north on Broadway a distance of from 150 to 175 feet (though the exact distance is not shown in the evidence, but merely in the arguments of counsel), and saw no car south of such track. He then, as stated, proceeded on Front street with the south wheels of his hack within a few inches of the north rail of the street car track. He was driving at a trot. He continued in this position until about the middle of the block-that is to say, until he was about 480 feet west of the intersection of Broadway and Front street-and, without again looking to the rear, turned suddenly to the south and across the track, and so close to an approaching car that after he turned the car could not possibly have been stopped, and he was struck and injured. The evidence shows, at least there is credible evidence which shows, that even before plaintiff turned to the south and directly across the track, and, indeed, all the time that he was on said Front street, he was within a few inches of the north rail of the street car track and within the area of the car, so that the collision would have occurred whether he had turned across the track or not, so that it cannot be said that the turning south across the track was the occasion of the accident. All of the witnesses testify that the motorman applied the brakes and reverse as soon as he saw the hack turn south and across the track. One witness testified that the car was going at an unusual speed. Another witness testified: “It seems to me that the car was running fast, but of course I am no judge.” Another testified that: “The car was coming fast.” Another testified: “The speed of the car was 6 to 8 miles per hour.” The jury found that defendant's car was moving, at the time of the accident, 14 miles an hour, and that the time which elapsed between the place where plaintiff looked back to see whether a street car was on Broadway-that is to say, the time when he first reached Front street-and the time of the accident was one minute. Two witnesses testified positively that the gong was not sounded; that no gong rang. The respondent and three of his witnesses testified that they heard no gong; six witnesses, that the gong was sounded. The question of the ringing of the gong, therefore, was one for the jury.

The special verdict found that the car, at the time of the accident, was moving at the rate of 14 miles per hour; that the plaintiff was driving his team at the rate of 3 miles an hour; that no gong was sounded; that the motorman was guilty of lack of ordinary care in the operation of his car at the time of the accident; that such want of ordinary care proximately caused the injury; that plaintiff looked back upon arriving at Front street, but not afterwards; that he listened for the approach of the car, however, from the rear; that he could not, in the exercise of ordinary care and diligence, have seen the approaching car in time to avoid the accident; that he was not guilty of any want of ordinary care which contributed to the injury; that, after the motorman saw the plaintiff drive on the track, he had time to stop the car and avoid the accident; that the plaintiff listened for the approach of the car from the rear; that he went so near the track that the car could not pass him without hitting his wagon; that the motorman, after he saw plaintiff's danger, did not make a reasonable effort to reduce the car to proper control, nor did he do so when he saw the plaintiff's vehicle on or near the track; that one minute elapsed between the place where the plaintiff looked back to see whether a car was on Broadway south of the Northern Pacific track and the time when he was struck by the defendant's car on Front street; that the plaintiff arrived upon or near the track of the defendant company so near the car in question that the motorman in charge of such car, after seeing him exposed to danger, might have avoided injuring him by the exercise of ordinary or reasonable care; that the motorman did not use ordinary care to reduce the car to control for such purpose. It also found, generally, the fact of the accident and the injuries, etc., also that “the car was running at a dangerous rate of speed at the time of the accident.” From a judgment for damages, for injuries to the plaintiff, both to himself, his horses, and his carriage, in the sum of $2,625, with interest, defendant appeals to this court.

Appellant assigns as error that such special verdict was insufficient to sustain the judgment, and that the court erred in refusing to grant its motion for a directed verdict and in entering judgment for the plaintiff thereon. It states that the evidence was insufficient to sustain the verdict in that it wholly failed to show that the defendant was guilty of any negligence which caused or contributed to the injuries sustained; that it failed to show that the defendant did not exercise due care in the running of the street car; that the gong was not repeatedly sounded; that the speed of the car was excessive; that the car was not under control, and was not stopped as soon as possible; and defendant maintains that the proof of the plaintiff affirmatively discloses that he was guilty of contributory negligence in that, while driving ahead of defendant's car in the middle of the block, he turned suddenly south across the track immediately in front of the street car, and drove up on the track without listening or looking, when the car of the defendant was so near to him that had he listened, or had he looked, he must have seen it and avoided the accident. Other errors were assigned, but were not urged by counsel either in his brief or oral argument, and may therefore be deemed to have been waived.

Stambaugh & Fowler, of Fargo, for appellant. V. R. Lovell, of Fargo, for respondent.

BRUCE, J. (after stating the facts as above).

We think that there is no merit in the appellant's first propo...