Bergeron v. Minneapolis & St. Louis Railway Co.

159 N.W. 51, 37 S.D. 458, 1916 S.D. LEXIS 86

• Court: South Dakota Supreme Court
• Decided: August 29, 1916
• Docket: File No. 3706
• Status: Published

Opinion

SMITH, J.

Action for negligence in frightening plaintiff’s team, resulting in personal injuries to' plaintiff. At -the close of all the evidence defendant moved for a directed verdict on -two grounds: First, that the evidence failed -to show negligence on the 'part of defendant; second, that the evidence -disclosed negligence on the part of plaintiff such as to preclude recovery. Briefly stated, the circumstances disclosed by the undisputed evidence are as follows:

The plaintiff, a woman 45 years of’ age, lived on a farm 8 iniles from .Revillo-, where she had resided about 13 years. On the 27th of October, 19x2, she drove a -team of horses attached to a -triple box wagon toi the town of Revillo. The town is on the north side of defendant’s railway tracks. Plaintiff loaded -the wagon with a -ton and a .half of coal, groceries, eight sacks of apples, and a large grocery ibox. The triple wagon box was about 4 feet high. The spring seat in which plaintiff rode was on the front end of the second of the triple boxes. Plaintiff started for home about 4 o’clock in the afternoon,. -driving along a road or street on the north side -o-f the railroad track about 100 feet from the -track, • in an easterly direction, to a point two or three wagon lengths from the place where the. wagon road or ■street turns south across the railroad tracks. Two tracks run .east and west over the crossing; the north track being -the main line, and -the other, about 12 feet south, being á side track running we>stv2io feet from the crossing to the stockyards. Upon reaching a point two or three wagon lengths west of the north and south crossing, plaintiff saw defendant’s engine moving westward on the south or stockyards track, -and stopped her team: while the engine ¡passed westward and stopped at the stockyards; while the engine stood still at the stockyards, parties in an automobile passed plaintiff’s team, turned south, and passed over the crossing. Plaintiff followed, and reached the north track. At about that time the engine, which had ¡been standing still at the stockyard's, without giving any starting1 signal, 'began to move eastward on the south track, emitting quantities of steam and smoke. Plaintiff’s team became frightened, and refused to move-forward across the tracks, but began, in. spite of plaintiff’s efforts,, to move backward down the somewhat inclined road or fill leading up to the tracks, backing down ,a distin.ce of 25 or 30 feet, while the engine passed east over the south crossing to¡ a switch-222 feet east, where it switched over on the north or main track,, and again proceeded west to- the crossing on the main track. During this time plaintiff’s son, who- was on horseback, and another man, who happened to notice -the frightened team, took hold of the horses’ heads and attempted to control them. The horses continued to back down the road toward the culvert or ditch, into which one of the -hind wheels of the wagon sank; the front part of the wagon and the spring seat remained level; during this time defendant’s engine .passed west on the north track while the -horses were still frightened and plunging more- or less; when the -hind wheel of the wagon sank into- the ditch, and after the engine had passed and was about 200 f'eet wes-t,. plaintiff asked her son, who was. at the -heads of the horses,, whether they -could hold the team- while she got out of the wagon.. The son replied -that he -thought they could. Plaintiff then stepped -over -the wagon 'box onto- the front wheel of the wagon, and' while her foot was -on the- fop of-the wheel the -horses again-plunged, causing her to- fall; the fall resulting in the injuries complained of. Plaintiff was accustomed to handling horses, had' done farm work, had hauled' grain and farm produce to market,, had- driven this team over th-e same crossing about -oncé a week for 10 or '12 years, and the same day 'of the -accident had driven-them close to -a freight train, and during all that time t-he horses-had never been frightened 'by engines, or trains* or. the noises made in operating them.

The first question presented is whether the court erred in overruling defendant’s motion for a directed verdict at the -close of all the evidence, an-di submitting to the jury the question of defendant’s negligence, plaintiff’s contributory negligence, and whether the acts of defendant’s employees were the proximate cause of plaintiff’s injuries.

[1] Whether the plaintiff was guilty of negligence in ápproaching and attempting -to- dross the tracks while defendant’s engine was standing at the stockyards more than 200 feet away, giving no starting signal, we think, was a question for the jury. Whether defendant’s servants were guilty oif negligence in proceeding with the operation of the engine, apparently oblivious'to the close proximity of’ plaintiff’s team- and its frightened condition, and the evidence would plainly -warrant the jury in finding that defendant’s employees must have seen the actions-and frightenéd condition of -the team, we think, was likewise a question for the jury. Appellant’s suggestion that plaintiff was negligent -in not proceeding across the track is not tenable. Whether she was prevented) from proceeding, and found it impossible, because of the fright of the horses, was, we think, a question for the jury.

We cannot say, as a -conclusion of law, that plaintiff was guilty of negligence in driving her team up- to- the railroad trades while the -defendant’s engine was standing still at the sto-ckyards, something over 200 feet away, and she co-uld have crossed both tracks and reached a place of safety in passing a distance of a little more than 12 feet. She had driven the -team- many times near trains and engines, and they had never been frightened thereby; she had stopped the team at least xoo feet away from the track, -and waited and watched several minutes, to ascertain whether the engine was about to move. Up- to the moment shé reached the' railroad track the engine, was motionless, and had given no starting signal, by ringing the bell or otherwise. Certainly the question whether she was guilty of negligén-ce in approaching a place of danger was for the jury.

[2] The. rule -of law. .applicable in- this case is very clearly and accurately stated in 33 Cyc. 922 (2) :

“As a general rule -the rights and duties of the public and a railroad company at a public crossing are mutual and reciprocal, and both are charged with the mutual duty of keeping a careful lookout to avoid inflicting or receiving' injury, the degree of diligence to be used on each side being such as a prudent person would exercise under the circumstances at the particular time and crossing, in endeavoring to perform his duty.”

[4] Under this general rule each party in regulating his conduct may presume that the other will exercise reasonable care. Loucks v. C., etc., R. Co., 31 Minn. 526, 18 N. W. 651; Williams v. C. etc., R. Co., 78 Neb. 701, 111 N. W. 596, 14 L. R. A. (N. S.) 1224; Allen v. Boston & M. R. Co., 94 Me. 402, 47 Atl. 917.

[3] The right to operate railroads necessarily includes the right to make the usual noises incident to the movement of its engines and trains. Cahoon v. C. & N. W. R. Co., 85 Wis. 570, 55 N. W. 900; Hahn v. S. P. R. R. Co., 51 Cal. 605; Louisville & N. R. Co. v. Sights, 121 Ky. 203, 89 S. W. 132.

[4-6] Appellant contends, and we think correctly under the evidence, that its employees, when, starting' the engine from the stockyards, caused no unnecessary noises and were guilty of no negligence at that particular time. They were not bound to presume or anticipate that plaintiff’s team would become frightened at the usual and ordinary noises made in operating the engine. But they roust have seen, and were bound to1 see when it - actually occurred in plain view at the crossing, that plaintiff’s team had become frightened and, to an extent, at least, unmanageable; and it was their duty thereafter to use reasonable care in the operation of the engine to prevent injury to plaintiff. The rule of law that- the right to operate trains, and engines' carries with it the right to make the ordinary and usual noises accompanying- such operation did not free them from the duty of using reasonable care to prevent injuries to plaintiff after they knew that plaintiff’s -tparn had become frightened and practically unmanageable. Whether defendant’s employees exercised reasonable care in this respect was properly a question for the jury. Louisville, etc. R. Co. v. Penrod, 24 Ky. Law Rep. 50, 66 S. W. 1013, 1042.

Appellant relies largely upon the rule laid down in Lake Shore & M. S. R. Co. v. Butts, 28 Ind. App. 289, 62 N. E. 647, where the court said:

“The engine and train were rightfully upon appellant’s track. Appellee was rightfully upon the highway, and in driving his team across the track was guilty of no negligence. Both parties were where they had the right to- be, and each had the right to carry on the particular business engaged in at the time and place in such manner as was reasonable and necessary to the 'use and enjoyment of their property. Appellant had the legal right to operate its road and move its trains with engines propelled by steam. In so doing certain noises are necessarily made. The single fact that a team took fright at these usual and necessary noises cannot make the company liable. If these usual and necessary noises were produced in the' exercise of a lawful right, and the employees, through whose acts the noises were produced, were not .guilty of any wrongful conduct, there can be no liability.”

[7] Many decisions are cited as sustaining this rule. The rule meets with our approval, but is not decisive of this case. If plaintiff’s cause of action rested alone upon the allegation and proof of negligence in starting the engine at the stockyards, and thereby frightening plaintiff’s team, defendant would1 have been entitled to a directed verdict under the authorities cited. So far as the evidence discloses, the defendant’s employees were not guilty of negligence in starting the engine. But whether their subsequent acts were negligent, when they must be presumed to have seen and to know that plaintiff’s team had become frightened and unmanageable, was a question of fact for 'the jury. We think the correct .principle is laid down in the case of Williams v. Chicago, B. & Q. R. Co., 78 Neb. 695, 111 N. W. 596, 14 L. R. A. (N. S.) 1224, where the court said:

“We -have not overlooked the general rule applied in Hendricks v. F., E. & M. V. R. Co., 67 Neb. 120, 93 N. W. 141, to the effect that a railroad -company is not liable for injuries caused by a team taking fright at the ordinary -operation of a train on its road. While that rule is generally -recognized by the -courts, we know o-f no case where any court has shown a disposition to depart from- -the- human-e doctrine that a person must conduct his business with -due .regard for the safety -of others. Noise is an unavoidable incident to the operation of railroad trains. But, where the conditions are such that the n-oise incident to- the movement of a train or engine would endanger those lawfully near the track, and ooul'd be temporarily stayed' or suspended without materially interfering1 with the due operation of the road, ordinary prudence and a due repard for the rights and safety of other people demand that the noise be prevented or suspended until the danger is past.”

Whether in this case a due 'regard for the rights and safety of - other people demanded that defendant’s employees should temporarily suspend or stay the operation of the engine after plaintiff’s team was seen to have been frightened, was property a question for the jury.

[8] Appellant further contends that when the engine moved from the switch toward the crossing on the main track, -ringing the hell, and defendant’s employees, saw two men at the heads of plaintiff’s horses-, they were justified in- believing -that the team was under control and the}'- might safely proceed westward. But the team -was at all times in plain view of defendant’s employees, and the question whether it was under such control as to justify them in omitting such precaution as might have prevented further frightening of the team was a question for the jury, especially in view of the evidence which tends, to- sho-w tha-t from the time -they were first frightened up to the time of pliantiff’s injury, the team was practically unmanageable.

[9] Appellant further contends that negligence of the -defendant, if it existed, was not the proximate cause of plaintiff’s injuries. We -cannlot agree with this contention. It might be sufficient to observe, assuming negligence, that plaintiff’s injuries would not have occurred, except for that negligence. But the real question, however, is whether the plaintiff herself was negligent and careless in stepping on -the wagon wheel when attempting to escape from a dangerous position, in which she found herself because of the frightened1 and- unmanageable condition of her team. We think the principle -announced in Lundien v. Fort Dodge, D. M. & S. R. Co., 166 Iowa, 85, 147 N. W. 308, is applicable here. The court said:

“It is also a well-settled principle, in all cases where the question of negligence is involved, that -one party cannot, by his want -of care, put the -other in danger, and then excuse himself from- liability on the ground that the one s-o injured did not use good judgment in .extricating himself from a peril so induced.”

In any event the question might properly 'be submitted to the' jury, as it must be presumed it was in this case.

[10, 11] In view of the foregoing conclusions and statement of the facts ’disclosed1 by the record, we deem- it unnecessary to consider appellant’s assignment and contention that the evidence is insufficient to support the verdict. In Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. 25, it is said:

“Negligence is almost always to be deduced as an inference of fact from several facts and circumstances disclosed ■ by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases, if unbiased men would differ as to such inferences, then they cannot be made without -the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout.”

“It ¡is only when the inference of negligence, or the absence of it, from the undisputed facts proved, is inevitable, that the court will direct a verdict.” Nelson v. Railway Co., 60 Wis. 323, 19 N. W. 53.

[12] The absence of “ordinary care” or “reasonable prudence,” under conditions which require their exercise, constitutes actionable negligence, and we think the language of Justice Lamar in G. T. R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, is pertinent here.

“There is no fixed standard in the law by which a court, is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,’ 'reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross, negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to1 noté the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of faots is such that reasonable men may fairly differ upon the question as-to whether there was negligence or not, the determination of' the matter is 'for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.”

Assignments 6 to 53, inclusive, cover various ruling of the-trial court in receiving or excluding evidence. Tírese assignments are so numerous that a discussion of them in groups is impracticable. We have carefully considered them all, and are not convinced that any of them were or could have been prejudicial to appellant’s rights. The rules of law involved in counsel’s discussion of these assignments are largely elementar}'-, and the case presents no new application of such rules to any unusual state of facts.

Upon a careful consideration of the entire record, we are-convinced that the judgment and order of the trial court must be affirmed.