Wall v. Great Northern Railway Co.

175 N.W. 705, 43 N.D. 422, 1919 N.D. LEXIS 61

• Court: North Dakota Supreme Court
• Decided: November 8, 1919
• Status: Published

Opinions

Bronson, J.

This is an action for personal injuries. The defendant has appealed from a judgment entered upon a verdict of $500 returned ■for the plaintiff. The facts substantially are as follows:

On October 15, 1918, the plaintiff was injured in the stockyards at Devils Lake, North Dakota, while walking in the dark upon a bulkhead or sort of platform. This bulkhead was constructed for purposes of unloading cattle and live stock. The plaintiff was injured by stepping off the samé, occasioning a fractured limb. The plaintiff was accompanying some stock owned and shipped by him upon a shipper’s or drover’s contract from Carbury to St. Paul. In accordance with the plaintiff’s evidence, while he was trying to look after and care for his stock and was seeking to borrow a lantern to find his way, he was so injured. On the other' hand, evidence was introduced by the defendants that the stock was being cared for by the railroad; that the plaintiff’s presence was unnecessary in such stockyards, and that he was practically a mere volunteer in being at the place where, he was injured. There were no lights at this time around or about such platform or bulkhead. The appellant herein principally contends that the evidence does not establish negligence on the part of the defendant, but, on the contrary, the contributory negligence of the plaintiff. That the plaintiff was not a passenger, and at most a mere licensee. The defendant further complains that the trial court erred in granting the motion of the plaintiff to amend the title of the action by adding after the words “the Great Northern Bailroad,” “W. D. Hines.” The record herein has been examined at length, and this court is satisfied that the questions of negligence and contributory negligence were fairly questions of fact for the jury, and that there is no prejudicial error in the rulings or instructions of the court. No prejudicial error was committed by the trial court concerning the motion of the plaintiff. Judgment was rendered only against the defendant. No specific issue is presented to this court concerning the effect of Federal administration upon the liability of the defendant. In the answer it is admitted that it is a common carrier operating a railroad between the places mentioned in the complaint. It is immaterial whether the plaintiff be considered a passenger or mere licensee at the time he was injured. The plaintiff, in accompanying the stock upon a contract which gave him the privilege of accompanying the stock and riding on the train, presumably had the right to watch and look after this stock, and, while so doing, it was the duty of the defendant to exercise reasonable care and prudence to provide and keep, in a reasonably safe condition, instrumentalities provided for use in the transportation and handling of stock. Atchison, T. & S. F. R. Co. v. Allen (75 Kan. 190) 10 L.R.A.(N.S.) 576, 88 Pac. 966.

The judgment is affirmed, with costs to the respondent.