West v. N. Pac. Ry. Co.

• Decision Date: 14 June 1904
• Citation: 100 N.W. 254,13 N.D. 221
• Parties: WEST v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

13 N.D. 221

100 N.W. 254

WEST

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

June 14, 1904.

Syllabus by the Court.

1. Failure to give the statutory signals, and running the train at too rapid a rate of speed, does not excuse negligence on the part of one in charge of a team killed at a railroad crossing.

2. Plaintiff's servant approached a railroad crossing with which he was familiar, with his horses on a trot, knowing that a train was approaching at a high rate of speed and very near to the crossing, and that a view of the train was obstructed by buildings and cars from a point 127 feet back from the track until he arrived within 8 feet thereof. But for the noise of his wagon, he could have heard the train in time to have avoided a collision with it. Under these circumstances he was guilty of negligence, preventing a recovery, first, for attempting to drive in front of a rapidly moving train in close proximity to the crossing, whereby his team was struck and killed by the cars; and, second, for not stopping and thus quieting the noise of his own vehicle, and thereby enabling himself to hear the train before getting upon the track in front of it.

Appeal from District Court, Eddy County; Glaspell, J.

Action by P. H. West against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.C. J. Maddux, M. Conklin, and Ball, Watson & Maclay, for appellant. P. M. Mattson and S. E. Ellsworth, for respondent.

COCHRANE, J.

Defendant appeals from an order denying its motion for judgment notwithstanding the verdict, or for a new trial. The plaintiff recovered the value of a team killed at a railroad crossing. The point for consideration is whether or not, under the evidence, plaintiff's driver was guilty of negligence proximately causing the injury, or of contributory negligence as a matter of law.

The accident occurred on Lamborn avenue, in New Rockford, where the appellant's main track crosses such street at right angles. Lamborn avenue runs east and west, the railroad north and south. There is a side track on the west side of, parallel with, and distant eight feet from the main line track. On the west side of this side track, and north of Lamborn avenue, are certain elevators and structures extending for several hundred feet along the side track. The east line of such structures is 8 feet from the center of the side track, and 30 feet 8 inches from the center of the main track. These structures varied in height, and, with cars on the side track near the elevators, obstructed the view of the track to the north, on the part of one approaching from the west on Lamborn avenue, until within eight feet of the track. Chicago avenue runs north and south, west of and parallel with the railroad. It is 127 feet from the west side of Chicago avenue to the center of the main-line track, and 1,380 from Lamborn avenue north to the water tank. From the west side of Chicago avenue a train could be seen if north of the water tank.

Frank Haas, the driver of this team, lived in New Rockford, and had been employed as a driver upon a dray for several months prior to the accident. He was familiar with the crossing on Lamborn avenue and the conditions above described. On the evening of the accident, October 8, 1902, between 6 and 6:30 o'clock p. m., but before dark, Haas was in front of plaintiff's house, one block west of the railroad tracks on Lamborn avenue. He saw a train approaching on the main track, about 1 1/2 miles north. He went into the house, stopped there not over a minute, came out to the street, where his team was standing, turned it around, and started east toward the track. He drove the team on a trot clear down and onto the track. When he crossed the west side of Chicago avenue he looked north, but did not see the train. If it had been north of the water tank he could have seen it. He knew when he could not see it that it was very close to the crossing; knew it had not passed the crossing; knew it was approaching; but thought, from where he had first seen the train, he had time to get over the crossing, and so did not slacken the horses' speed at all until they struck the track. As he was driving, he looked and listened for the train. The wagon he was driving was an ordinary lumber wagon. It made some noise. Haas testified: “I could have heard the train if I had not been making an unusual noise myself.” He saw the train when 50 or 60 feet from him, and when his horses were on the track he tried to back them off, but the team was struck by the engine and killed.

The negligence of defendant is alleged to have consisted in its running the train into the town and across this street at a high rate of speed, without sounding the whistle or ringing the bell. There is a conflict in the evidence both as to the speed of the train in approaching the crossing and as to the warnings given. There was evidence in the case that the train approached the crossing at a speed of 30 miles an hour, and that the whistle was not sounded or bell rung within 80 rods of the crossing. For the purposes of this decision, the evidence will be considered in its most favorable aspect toward plaintiff. Haas testified that if the trainmen had rung the bell or blown the whistle within 80 rods of the crossing, or if the bell had been rung continuously within a block of the crossing, or if the train had been going at the rate of speed that trains usually run through the town, he could have avoided the accident; that he was depending upon the sound of the whistle or the bell to warn him of its approach. It is plain that Haas was guilty of gross negligence, and that his negligence was the direct cause of the accident, and that the negligence of the appellant's trainmen in the particulars mentioned could furnish no excuse or justification for the reckless act of Haas in attempting to cross in front of the approaching train. From the time Haas crossed Chicago avenue until he reached the track he knew all view of the train would be obstructed, and that he could not gauge its exact distance through the sense of sight, but must rely upon the sense of hearing alone. When 127 feet from the crossing, with his mind and attention fixed upon the fact that the train was approaching; with ocular proof that it had traveled from a point 1 1/2 miles north to a point less than 1,380 feet from the crossing since he had first seen it, less than 3 minutes before, and if the rate of speed was maintained it would be on the street ahead of him in less than 1 minute; with knowledge that he could not see the train again until it emerged from behind the buildings and appeared at the crossing toward which both the train and his team were hurrying; that a stop of a minute at most would let it pass; with full knowledge of the danger of attempting to drive across in front of a train approaching at such a rapid speed, and dangerously near-he took no precautions for his safety, but hastened on as if in a race to see which could first pass the point of intersection.

The trains were not accustomed to stop at the crossing. He knew this, because he relied upon the bell or whistle to warn him when the train would get to the crossing. The erections which obstructed his view of the train also prevented the train crew seeing him. It was impossible, and he knew it would be impossible, for the train crew to see him on the crossing in time to stop the train and avoid a collision. As between himself and the train, the train was entitled to precedence and the right of way, because, from the very nature of the business, the character and momentum of a railroad train, and the requirements of public traffic by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first. It is the duty of the wagon to wait for the train. Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 405;Gahagan v. Ry. Co. (N. H.) 50 Atl. 146, 55 L. R. A. 434. Haas voluntarily and unnecessarily put himself and team in a place of known danger on the track in front of the train, and by so doing took the risk of accident. The consequent injury was directly attributable to his want of ordinary care, and not to the negligence of the railway company. The object of requiring the whistle to sound or the bell to ring 80 rods before reaching a crossing, and thereafter until the crossing is passed (section 2976, Rev. Codes 1899), is to notify the traveler so that he can look out for his safety, and allow the train to pass the crossing before he exposes himself to danger by a possible collision. Warner v. Ry. Co., 44 N. Y. 470.

When, as in the case at bar, the person in charge of a team had actual knowledge of the train's approach in ample time to have permitted the train to pass, and knew, without sound of bell or whistle, all that he could have known had the alarm...