West v. Northern Pacific Railway Company

Decision Date14 June 1904
CourtNorth Dakota Supreme Court

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.


Order reversed, and a new trial ordered.

C. J Maddux, M. Conklin, and Ball, Watson & Maclay, for appellant.

Where the driver of mature years, accustomed to driving horses who had lived and worked near the crossing where the accident occurred, and was familiar with it for a period of six months prior to such accident; had actual notice of the approaching train, saw it coming, estimated its distance and the time it would require him to pass over the crossing as compared with the time which he though it would take the train to do so went into the house after he saw it coming and thought he had ample time to get over the crossing before it arrived; and who knew his view was obstructed by buildings and other structures, but nevertheless drove his team in a trot until his horses were on the main line of the road, and looked and listened for the train, knew it had not yet passed over the crossing, and if not visible must be very close; and who did not stop the team anywhere to look or listen but trotted clear down and upon the track, and who would have heard the train but for the unusual noise made by his lumber wagon, and whose horses were quiet and tractable, and at all times under his control; and who was depending upon the sound of the whistle or ringing of the bell, to warn him of the train's near approach, and his attention not being distracted by any other occurence, in the face of all this to say the plaintiff is entitled to recover, is to fly in the face of reason and disregard all well settled principles of law.

The defendant, as a matter of law, was guilty of no negligence. If a traveler upon a highway has notice of the train's approach otherwise than by ringing of the bell or the sounding of the whistle, in season to avoid a collision upon the crossing, the object of the whistle, and bell has been subserved, and failure to sound them is not the cause of the traveler's injury. Railroad v. Bell, 70 Ill 102; McManamee v. Railway, 37 S.W. 119; McDonald, v. Railroad, 22 S.W. 942; Baker v Receivers, etc., 30 N. J. E. 240; Chicago, Rock Island & P. Ry. Co., v. Houston 95 U.S. 702, 24 S.Ct. 542; Burnet v. Railroad, 39 A. 663; Helm v. Railroad, 33 S.W. 396.

Nor, in view of the driver's knowledge of the team's approach, was its unusual speed a matter of negligence. Korrady v. Lake Shore & M. S. Ry. Co. 29 N.E. 1069; Pepper v. Southern Pac. Ry. Co. 38 P. 974; Kelly v. Railroad, 75 Mo. 138; Taylor v. Railroad, 86 Mo. 457; Pyle v. Clark, 79 F. 744; State v. Maine Cent. R. Co. 1 A. 673; Chicago, R. I. & P. R. Co. v. Crisman, 34 P. 286.

It was the duty of the driver, who knew that the train was approaching and had not yet passed the crossing, to stop and listen, or if not to stop, at least to bring his horses to a walk before entering upon the track. It was negligence to drive them upon a trot to a point where, upon seeing the train, he could not possibly avoid a collision. Elliot on Railroads, section 1167; Houghton v. Chicago & G. T. Ry. Co., 58 N.W. 314; Brady v. Toledo, Ann Arbor & N. M. R. Co., 45 N.W. 1110; Shatto v. Railroad, 121, F. 678.

The presence of buildings and structures intercepting the driver's view, when coupled with his knowledge of the approaching train, rendered it imperative that he stop and listen before going upon the track. The greater the danger the greater the precaution required. Seefeld v. Chicago, M. & St. P. Ry. Co., 35 N.W. 278; Brady v. Toledo, Ann Arbor & N. M. R. Co. supra; Barnhill v. Railway, 33 So. 63; Day v. Railroad, 52 A. 771; Railway v. Holden, 49 A. 625; Hook v. Railway, 63 S.W. 360; Chase v. Maine Cent. R. R., 45 N.E. 911; Carter v. Railway, 47 A. 797.

Travelers are bound to make vigilant use of both senses of sight and hearing; and when the driver's failure to hear an approaching train was due to the unusual noise of his own vehicle, he thereby directly contributed to his injury. Carter v. Railway, 47 A. 797; Chase v. Maine Cent. R. Co., 5 A. 771; Allen v. Maine Cent. R. Co., 19 A. 105.

P. M. Matson, and S.E. Ellsworth, for respondents.

A motion for judgment notwithstanding the verdict must be made before judgment is entered on the verdict. Scheible v. Hart, 12 S.W. 628; 11 Enc. of Pl. & Pr. 920.

Appellant did not move the District Court, at the close of the testimony, to direct a verdict in its favor. Such motion at such time is a necessary preliminary to a motion for judgment notwithstanding the verdict. Session Laws 1901, Chap. 63, page 74; Hemstad v. Hall, 66 N.W. 366; Sayer v. Harris Produce Co., 87 N.W. 617; Johns v. Ruff, 12 N.D. 74, 95 N.W. 440.

When a motion for a new trial is addressed to the sound judicial discretion of the trial court and an order made thereon based upon such ground will not be reversed by the Appellate Court, unless the record discloses a case of abuse of discretion. Gull River Lumber Co. v. Osborne-McMillan Elevator Co., 6 N.D. 276, 69 N.W. 691; Pengilly v. J. I. Case Thresher Co., 11 N.D. 249, 91 N.W. 63; O'Conor v. Clark, 44 P. 482; 14 Enc. of Pl. & Pr. 982 and cases under note 2.

A verdict can only be directed when the undisputed evidence, giving the construction most favorable to the party directed against that it will bear, and after allowing him the benefit of all reasonable inferences arising in his favor, will not sustain a verdict in his favor. Pirie, Carson et al. v. Gillett, 2 N.D. 255, 50 N.W. 710.

It was the duty of the court to submit the case to a jury, unless upon the trial the evidence of respondent's contributory negligence was so clear and convincing that all reasonable minds could draw but one conclusion therefrom. Struck v. Chicago, M. & St. P. Ry. Co., 59 N.W. 1022; Bronson v. Oakes, 76 F. 734; N. P. Ry. Co., v. Austin, 64 F. 211; Chicago, etc. Ry. Co., v. Netolicky, 67 F. 665.

Respondent was warranted in assuming that the signals and warning required by law would be given. Vandewater v. N. Y. etc. R. Co., 26 N.Y.S. 397; 8 Am. & Eng. Enc. of Law (2d Ed.) 407.

In view of the obstructed condition of the crossing, respondent might assume that greater care than ordinary in approaching would be observed, and trains would not be run at a high and unnusual rate of speed. Beanstrom v. Northern Pacific. R. Co., 48 N.W. 778; Thomas v. Delaware, etc. Ry. Co., 8 F. 729.

Where the use of either the sense of sight or hearing would be unavailing, even its non-use may be excused. Terre Haute & I. R. Co., v. Voelker, 22 N.E. 20.

The rule that a traveler before going upon a railroad track must look and listen, and that failure to do so is negligence per se, has been refused recognition by the Federal Courts and by the courts of almost all the states. St. Louis & Ry. Co. v. Barker, 77 F. 810; Peck v. Oregon Short Line Ry. Co., 69 P. 153; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679; 7 Am. & Eng. Enc. of Law (2d Ed.) 433.

If a traveler approaching a crossing takes every reasonable precaution a prudent man would observe to avoid injury from passing trains, he has done all that can be required of him, and whether his conduct, under all the circumstances shows ordinary care is generally a question for the jury under proper instructions. Cobleigh v. Ry. Co., 75 F. 247; Beanstrom v. N. P. Ry. Co., supra; St. Louis, etc. Ry. Co. v. Barker, 77 F. 810; Northern Pacific Ry. Co. v. Austin, 64 F. 211; Selensky v. Chicago, Great Western, 94 N.W. 272; 7 Am. & Eng. Enc. of Law (2d Ed.) 434.

The speed of his horses together with other circumstances of his conduct, should be left to the consideration of the jury. Atchison, Topeka & S. F. R. Co., v. Shaw, 43 P. 1129; Moore v. Chicago, St. P. & K. C. Ry. Co., 71 N.W. 569; Hicks v. N. Y., N.H. & H. R. Co., 41 N.E. 721; Selensky v. Chicago, Great Western Ry. Co., 94 N.W. 272; Chicago & I. R. Co., v. Lane, 22 N.E. 513; Northern Pacific R. Co. v. Austin, 64 F. 211; Chicago, etc. Ry. Co. v. Netolicky, 67 F. 665.

A prudent man in the exercise of ordinary care may keep moving towards a railroad track with his vehicle making a certain amount of noise. St. Louis, etc. Ry. Co. v. Barker, 77 F. 810; Chicago, etc. Ry. Co. v. Netolicky, 67 F. 665; Beanstrom v. N. P. Ry. Co., 48 N.W. 778.



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...

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