Rober v. Northern Pacific Railway Co.

142 N.W. 22, 25 N.D. 394, 1913 N.D. LEXIS 124

Opinions

Bruce, J.

(after stating the facts as above). Appellant relies upon four propositions for a reversal of this judgment: (1) That there was no proof of negligence on the part of the defendant; (2) that there is proof of contributory negligence; (3) that the proof offered does not in any way justify the awarding of anything hut nominal damages; (4) that the evidence in relation to the switch engine which was seen by the haekman at about 10 o’clock and probably an hour prior to the accident was improperly admitted.

On the first two objections it is argued that there is evidence which tends to show that a man could have been seen on the night in question at a distance of 30 feet, and that the outlines of a box car could have been seen from 150 to 200 feet. The proof, however, also shows that the night was very cold and stormy, and that a strong wind was blowing with a velocity of from 30 to 45 miles an hour, and that dust and gravel and debris were in the air; the thermometer registered 18 degrees below zero; the yards were not lighted. There is also evidence that at about 10 o’clock a haekman drove close to an engine upon the track, which the evidence strongly tends to show was the one which ran over the deceased, without even seeing the same or hearing any bell or signal sounded. There is also evidence that blood was found upon the wheels and tender of a switch engine of the defendant the next morning. On the other hand, the engineer testified that there were lights on both ends of his engine, and that he sounded his bell whenever he passed the crossing. We do not believe that this evidence overcomes the presumption of ordinary care which is based upon the instinct of self-preservation. Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 367, 121 N. W. 830, and cases there cited, 1 Moore, Facts, §§ 554, 555; Hanlon v. Milwaukee Electric R. & Light Co. 118 Wis. 210, 95 N. W. 100. It is true that this presumption does not overcome direct, probative evidence, but as we view the case, there is nothing in the record which rises to the dignity of such. ■

The plaintiff’s intestate was killed on the crossing of a public highway, and within the limits of the city. There is no real dispute upon this question. The mangled remains of the body, and the clothes found in the frog in the highway, is sufficient evidence of this. The presumption of the law is that a man has not committed suicide; and therefore that the deceased did not voluntarily throw himself upon the track. Soules v. Brotherhood of American Yeomen, 19 N. D. 23, 120 N. W. 760 ; Schraeder v. Modern Brotherhood, 90 Neb. 688, 39 L.R.A.(N.S.) 157, 134 N. W. 266 ; Walden v. Bankers’ Life Asso. 89 Neb. 546, 181 N. W. 962 ; 1 Moore, Facts, § 651. So, too, there is no presumption that anyone else committed a crime, that is to say, killed him and placed his body upon the track. There is a presumption of due care on his part arising out of the instinct of self-preservation. Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. supra ; Cameron v. Great Northern R. Co. 8 N. D. 134, 77 N. W. 1016, 5 Am. Neg. Rep. 454. There is also, and above all, a duty on the part of the railway company to keep a proper lookout at a highway crossing, especially within the limits of cities. Coulter v. Great Northern R. Co. 5 N. D. 568, 67 N. W. 1046 ; Bishop v. Chicago, M. & St. P. R. Co. 4 N. D. 536, 62 N. W. 605 ; St. Louis Southwestern R. Co. v. Dingman, 62 Ark. 245, 35 S. W. 219. The engineer of the switch engine, which, as we view the evidence, must have occasioned the death of the deceased, or which, at any rate, was running up and down the track all night long and repeatedly crossed the crossing in question at and about the time when the accident must have occurred, testified that he knew nothing about the facts of the case at all, and did not know that the deceased had been run over until informed by someone else, some hour or so after the accident. The case, in our mind, was one for the jury to pass upon (Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. supra ; Anderson v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 463, 123 N. W. 281; St. Louis Southwestern R. Co. v. Dingman, 62 Ark. 245, 35 S. W. 219). -If the accident had taken place between highway crossings, and upon the open prairie, where there was no absolute duty to ring a bell or to keep a proper lookout, and where the deceased would probably have been a trespasser, the case might have been different.

But counsel for defendant and appellant argues that improper evidence was admitted, and that much of the evidence which is urged in support of the verdict was inadmissible. He objected and still objects strenuously to the introduction of the testimony of the hackman, Chapin, to the effect that at some time and about 10 o’clock he saw a switch engine upon the track at the crossing, without a tail light; that this engine almost ran into him, and that he heard no bell or gong sounded. It is urged, in short, that proof of prior negligence cannot be had in support of an allegation of negligence at a particular time. We must remember, however, that in the case at bar practically all the evidence is, or should be, in the possession of the defendant. The victim of the accident is dead. The evidence is to us conclusive that he was run over by a switch engine belonging to the defendant company. The question to be decided was not merely whether the defendant failed to ring a bell at the crossing at the time of the accident, or whether it had a tail light upon its engine, but what was the cause of the accident, and was there evidence to overcome the presumption of due care on the part of the deceased. It was claimed that the deceased could see the engine at a distance of 150 to 200 feet. The hackman was allowed to testify that he almost ran upon an engine without seeing it. It was claimed by the defendant that the bell was sounded at the crossing, and could have been heard by the deceased. It is shown that a strong wind was blowing, and it is sought to he proved by the plaintiff that the hackman was almost run into by an engine, without hearing any gong sounded. All of this evidence was admissible as tending to show the physical facts attending the accident. Not merely was this evidence admissible on the question of contributory negligence and as to whether the deceased could have seen and heard the engine in the storm or not, hut for the purpose of arriving at the real cause of the accident. There were no eyewitnesses tp the accident, and prcof of this nature is the only proof that could be adduced, unless the defendant himself chose to furnish better evidence. This is not a case where negligent acts on other parts of the road or on other occasions, or committed by other engineers than those involved in the accident, are concerned, but a case in which the acts and conduct of the engineers and servants, and the physical equipment of the engine engaged in the same general switching transaction in which the injury occurred, are involved. We think the evidence was admissible. See Chicago v. Powers, 42 Ill. 169, 89 Am. Dec. 418 ; Rich v. Chicago, M. & St. P. R. Co. 78 C. C. A. 663, 149 Fed. 79 ; Northern P. R. Co. v. Lewis, 2 C. C. A. 446, 10 U. S. App. 254, 51 Fed. 658 ; Grand Trunk R. Co. v. Pichardson, 91 U. S. 469, 23 L. ed. 362 ; Cotner v. St. Louis & S. F. R. Co. 220 Mo. 284, 119 S. W. 610 ; Woodward v. Southern R. Co. 90 S. C. 262, 73 S. E. 79 ; State v. Manchester & L. R. Co. 52 N. H. 528, 548 ; Davidson v. St. Paul, M. & M. R. Co. 34 Minn. 51, 24 N. W. 324 ; Swadley v. Missouri P. R. Co. 118 Mo. 268, 40 Am. St. , 24 S. W. 140 ; Aurora v. Brown, 12 Ill. App. 122 (affirmed in 109 Ill. 165) ; Goodwin v. Atlantic Coast Line R. Co. 82 S. C. 321, 64 S. E. 242 ; Lannis v. Louisville R. Co. 16 Ky. L. Rep. 446 ; Field v. New York C. R. Co. 32 N. Y. 339 ; Pennsylvania Teleph. Co. v. Varnan, 2 Monaghan (Pa.) 645, 15 Atl. 624 ; Quinlan v. Utica, 11 Hun, 217 ; Presby v. Grand Trunk R. Co. 66 N. H. 615, 22 Atl. 554 ; Galveston, H. & S. A. R. Co. v. Kutac, 76 Tex. 473, 13 S. W. 327 ; Bourassa v. Grand Trunk R. Co. 75 N. H. 359, 74 Atl. 590.

We now come to the proof of the damages. Appellant insists that since no mortality tables were introduced, there is no proof of the expectancy of life either of the deceased or of his relatives. As we understand the law, and as held by this court in the case of Ruehl v. Lidgerwood Rural Teleph. Co. 23 N. D. 6, — L.R.A.(N.S.) —, 135 N. W. 793, the admission in evidence of such tables is not necessary to a recovery of substantial damages. According to the common law, standard tables were competent and proper evidence, but they were not absolutely necessary. Under § 7303 of the Code of North Dakota, the Carlisletables are admissible, but their admission is not necessary. We have-discussed this question at some length in the case of Ruehl v. Lidgerwood Rural Teleph. Co. before referred to, and we believe that no extended discussion is necessary here. We know that counsel for the appellant makes a distinction between a case where the expectancy of the-life of the deceased and the expectancy of the life of the beneficiary are-concerned, but we can find no such distinction in the authorities. We have examined the cases cited by appellant, and the case of Rhoads v. Chicago & A. R. Co. 227 Ill. 328, 11 L.R.A.(N.S.) 623, 81 N. E. 371, and the notes to that case as reported in 10 Ann. Cas. Ill, 113, and can find no support for the proposition. All that the cases hold is that there must be some proof of a pecuniary loss to the beneficiaries, and that in such cases mortality tables are competent evidence. All that the case of' Rhoads v. Chicago & A. R. Co. supra, held was that in a case where the mortality tables had been introduced it was error for the court to instruct the jury that a father was entitled to a sum equal to the earnings of his son during the son’s expectancy of life, when the tables showed that the life of the son would have been twenty-eight years longer than that of his father. In other words, the court held that all the father could possibly recover would be a sum equal to the support that he would receive from his son during his, the father’s, life. We have, indeed, examined the Illinois Eeports with a great deal of care, and we have yet to find a case in which a judgment has been set aside because of the failure to introduce mortality tables in evidence. It is well established, indeed, as we have shown in the Euehl Case, that the court may itself take judicial notice of such mortality tables. It is also well ■established that the things of which a court may take judicial notice are things which are generally known. Taking judicial notice, as we do, .and may, of the Carlisle expectancy tables and of the expectancy of life ■of the deceased, which was 37.14 years; of the father, which was 18.97 years; and of the mother, which was 22.50 years if we put her age at 48; of the youngest child, which was 45 years; and of the next child, which was 42.17 years; and considering the earning capacity of the ■deceased, shown on the trial, we are not prepared to say that the verdict was excessive, or that only nominal damages should have been awarded. Little v. Bousfield & Co. 165 Mich. 654, 131 N. W. 63.

But defendant and appellant says that there is no proof of any pecuniary loss on which a recovery can be "based, even if the mortality tables had been introduced or were unnecessary. Counsel argues that there is no direct proof as to the money contributed by the son to his family, or of the monetary condition and needs of that family. We do not so understand the evidence. We have held in the case of Satterberg v. Minneapolis, St. P. & S. Ste. M. R. Co. 19 N. D. 38, 121 N. W. 70, that a legal obligation to support is not necessary to a recovery in such ■cases. The evidence shows that the boy’s earning capacity was about $4 a day; that he was in business with his father; and that he and his father made no division of the profits, but turned all of their earnings into the family fund. The evidence shows that the father was fifty-three years of age, and we must infer that the mother was at least forty-six. There was a girl of fifteen years of age, and a boy of about nineteen. The earning capacity of the family as a whole was not, it is true, shown, but it was shown that the father and son were both carpenters and concrete makers and in what may be termed the poorer class of society. In fact, the evidence conclusively shows that all of the earnings were turned into a joint fund for the family support. We think that the evidence was sufficient to warrant the recovery of substantial dam ages, and. that the amount recovered ($2,000) should not, under the circumstances, be deemed in any way excessive.

The judgment of the District Court is affirmed.