Amenia & Sharon Land Co. v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

189 N.W. 343, 48 N.D. 1306, 1922 N.D. LEXIS 178

• Court: North Dakota Supreme Court
• Decided: June 9, 1922
• Status: Published

Opinions

Robinson, J.

At a point about 4 miles south from Detroit, Minn., the Soo Railway crosses a highway; it is known as McCarty’s crossing. There on a pleasant summer afternoon of June 22d, at 4 p. m., a freight railway train of 22 cars, going north at a speed of 25 miles an hour, collided with the rear end of a Forty-Five Buick roadster going east on the highway at a speed of 20 miles an hour — 30 feet per second. The mobile was badly demolished. Mrs. Cure, a lady of 42 years, was killed, and each of her four children sustained injuries. Mr. Cure, the grandfather of the children, who had assumed the place of the father, was the ■driver of the Buick, and he escaped serious injury. The Buick had but one seat, sufficient for only two or three persons,. Mr. Cure sat on the ■driver’s side, which was the left end of the short seat. One girl sat on his right, holding a baby on her lap. On her right the mother sat, holding on her lap another child, and the boy of 11 years stood on the running board, holding onto the wind shield. They were out on a family picnic, and were going to Detroit for supplies. For a considerable distance before reaching the.crossing the road was parallel to the railway track and at a distance of about 200 feet. Approaching the crossing the road made a gradual turn to the east. When the car was within 60 or 70 feet of the ■crossing it was seen by a brakeman. The boy was seen with a foot lifted as if about to jump from the car. The alarm was given. The engineer applied the emergency brakes. The boy called'to his grandpa, and the collision was immediate. The parties injured assert that the negligence of the railway company was the direct and proximate cause of the accident. The company assert that the proximate cause was the negligence of the plaintiffs. Of course it is possible for an accident to happen without the fault or neglect of either party. But, certain it is, the railway train had the right of way. It did not have to stop, or even slow up, at a country road crossing. It was under obligations to blow the whistle at a whistling post set a quarter of a mile from the crossing. It is certain the whistle was duly blown. The engineer testifies that at the post he did sound the whistle two longs and two shorts, and he pushed the button which set in motion a continuous ringing of the automatic bell. His testimony is well corroborated by two brakemen. The whistling and the ringing was in accordance with duty and confirmed habit. The affirmative testimony in support of it far outweighs the negative testimony against it. Trainmen are anxious to save life and to avoid accidents. That is shown by the heroic conduct of the engineer, Mr. •Haygarth, who risked his life in rushing forward and catching the little girl, who was hanging onto the pilot beam, and hanging onto her till the train stopped. In all probability there was not one of the train crew who would not have risked his own life to save any of the children. Though in the railway service, “a man’s a man for a’ that.”

And now for the negligence of the plaintiffs, Mr. Cure was an expert driver and speeder. He had in hand a new Buick Forty-Five roadster. He knew well how to use it. He went onto the crossing at a speed of 20 miles an hour, 30 feet per second. In one-fourth of a second more of leeway he would have made the crossing, and made Detroit before the freight train. As it was, the engine barely struck the hind.end of the car, which was laden with six persons. The car was made for only two persons. By reason of the fact that Mr. Cure was cramped, the action fo his hands his feet, and his mind were impeded. So the chances are that he lost a quarter of a second. The boy on the running board saw the fast approaching train in time to jump off, but he concluded that his fast speeding car would make the crossing, and of course there was danger in jumping off. The plaintiffs were guilty of negligence in piling into and overcrowding the car and thereby hampering the driver and obstructing his vision and hearing. They were negligent in not bringing the car to a full stop or looking both ways before crossing the track. By law when two trains approach a railway crossing each train must stop so that one cannot run into the other. But no railway train is required to stop or even slow up at country highway crossings. Before attempting to cross a railway track it is the duty of every pedestrian and every person to stop or look out for the cars. If he fails he is guilty of negligence, and must suffer the consequences. In cases of this kind and in thousands of other cases the children may suffer, and must suffer, from the neglect of those who control them. The owners of the roadster must suffer from the negligence of the person to whom they intrusted their car.

And now for the verdict, so far as material:

Q. 5. Did defendant, in view of all the circumstances and surrounding facts, exercise due and reasonable care as far as blowing the whistle? A. No.

Q. 6. Did defendant exercise reasonable care so far as ringing the bell is concerned? A. No.

Q. 7. Did defendant exercise due and reasonable care in speed of the train. A, No.

Q. 8. Was such failure the proximate cause of the accident? A. Yes.

Q. 12. Did Mr. Cure exercise reasonable and ordinary care and diligence in the manner in which and the speed at which he approached and drove onto the crossing? A. Yes.

Q. 14. What damages, not exceeding $7,500, have the children of Mary Cure sustained by reason of the death of the mother? A. $7,500.

The verdict is clearly the result of sympathy, pity, and commiseration and of little regard for the rights of the big corporation. It is not sustained by the evidence. It is clear the engineer, did blow the whistle and ring the bell, and there was no lack of care in speeding the train. It is also clear that the proximate cause, the direct cause, of the injury was the failure of the plaintiffs to stop and listen and look both ways before driving onto the railway track. There was manifest negligence in speeding the car up to and onto the track at the rate of 20 miles an hour. The speed was such that the boy who stood on the running board and saw the fast approaching train was afraid to. jump off. He must have thought that the speed of his car would take him safely across, or that the speed was such that it would be more dangerous for him to jump off than to remain on the car. Had the roadster been driven at 10 or 12 miles an hour the boy would not have hesitated to jump off, and possibly Mr. Cure would not have hesitated to apply the brakes and stop his car. But going at a speed of 20 miles an hour there was more danger in trying to stop the car than in speeding across the track in front of the approaching train.

.It was error for the court to submit to the jury question 7, concerning reasonable care in the' speeding of the train.

It was error to submit question 5, concerning reasonable care in the blowing of the whistle. There was no real dispute concerning the whistling.

It was error to submit question 6, concerning reasonable care in the ringing of the bell. The question should have been, Was the bell rung continuously; and, if not, then did the failure to ring it cause the accident ? When a locomotive is about to start and when it moves at a slow speed through towns, the bell ringing is a matter of great importance, because it can be distinctly heard. But when a locomotive pulls 22 freight cars, 25 miles an hour, the loud, heavy, and continuous noise of the locomotive and the cars drown the sound of a bell. When a railway freight train moves at the usual speed, it is commonly heard at a distance of one-half a mile. It is heard by people in their homes, hotels and rooms, and beds, but the sound of a bell is never heard. The bell is heard only by those who are near to a slow moving train; hence it is certain that the accident was not caused by any failure to ring the bell. It was caused by recklessly running the Buick roadster onto the railway track in front of a fast moving train.

v The above was written as the opinion of the court. Mr. Justice Christianson concurs by a special opinion. The other three judges hold in part to the contrary. Hence the decision of the court is that the judgment be reversed as to the car driver, A. E. Cure, and the owner of the car, Amenia & Sharon Land Company, and that as to the other three plaintiffs it is affirmed.