Home/North Dakota Supreme Court/Zeis v. Great Northern Railway Co.

Zeis v. Great Northern Railway Co.

236 N.W. 916, 61 N.D. 18, 1931 N.D. LEXIS 238
CourtNorth Dakota Supreme Court
DecidedMay 19, 1931
DocketFile No. 5870.
StatusPublished
Cited by5 cases

This text of 236 N.W. 916 (Zeis v. Great Northern Railway Co.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zeis v. Great Northern Railway Co., 236 N.W. 916, 61 N.D. 18, 1931 N.D. LEXIS 238 (N.D. 1931).

Opinion

*20 Nuessle, J.

This action is brought by the plaintiff, Rose Zeis, to recover under § 8321, Comp. Laws 1913, for the death of her husband, Joseph A. Zeis, by wrongful act.

The defendant, Great Northern Railway Company, operates a line of railroad, running northwesterly from Fargo to Minot. The defendant Meckler is one of its engineers. The railroad crosses sections 29 and 30 in Reed township, Cass county. It intersects the section line running north and south between these sections, forming acute angles therewith of 62J degrees. In 1929, the deceased, Joseph A. Zeis, resided at Fargo. He owned a farm in Reed township, about a mile-north of the crossing where the. defendant’s railroad intersects the section line as above set forth. He was at the farm on the evening of September 9th. He wished to take some sheep to the packing plant at West Fargo. He had at the farm an open 1926 Model T. Ford touring car. The back seat had been taken off and a box placed thereon. He loaded five sheep, weighing 95 or 100 pounds each, and started for the packing plant. To get there it was necessary for him to cross the defendant’s railroad at the crossing above described. At the place of *21 ibis crossing tbe track was raised 5-J feet above tbe level of tbe surrounding prairie. Tbe prairie here was practically level. Approaches were built to tbe crossing. These approaches were of earth taken from adjacent borrow pits on tbe right of way. Tbe approach from tbe north was about 100 feet long, measured from tbe center of the track. Beginning at tbe north end of tbe approach for tbe first 20 feet of this distance, tbe gradient was 1 per cent, tbe next 10 feet it was 3 per cent, tbe next 10 feet it was 4 per cent, tbe next 10 feet it was 8 per cent, tbe next 20 feet it was 9 per cent, tbe next 10 feet it was ■8.8 per 'cent, tbe next 10 feet it was 9.6 per cent, and tbe last 10 feet was practically level. Tbe approach was narrow, from 9 to 12 feet in width at tbe top. It bad been lately repaired and was somewhat rough. Tbe edges were soft. It would have been difficult for two cars to pass on it. Tbe trail, in which tbe travel went, ran up tbe center ■of tbe grade. Looking northwesterly from tbe crossing along tbe rail-' road, tbe track is straight and almost level for one and a half miles, and tbe view is clear and unobstructed for that distance. There is a line of telegraph poles parallel with tbe track and 51.8 feet north from its center, as measured along the center of tbe highway. These poles -carried cross-arms. Tbe photographs shown herewith, plaintiff’s exhibits 4 and 5, show tbe track, tbe poles, tbe crossing, and tbe grade. Tbe first of these photographs, exhibit 4, was taken at a point 70 feet '1 inches east from tbe center of tbe highway and 49 feet 4 inches north of tbe north rail. Tbe view is toward tbe west. Tbe railroad bridge shown is 400 feet west from tbe crossing. Tbe woods appearing in tbe distance are along tbe Sbeyenne River, a mile and a half west from tbe crossing. Tbe camera evidently was placed directly in the line of the telegraph poles. ,The second photograph, exhibit 5, was taken 103 feet 4 inches north of tbe north rail, at a point in the center -of tbe highway. It shown the view looking south. Both of these photographs were taken on October 1st, three weeks after the date of the accident. The defendant operates one of its fast passenger trains, known as train No. 2, over this line of railroad. No. 2 ordinarily passes this point at a speed of 50 miles an hour. September 9 th was a clear, bright day. Zeis, coming from the north, reached the crossing about 4 r. M. He attempted to pass over it. For some reason when

*22

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Cite This Page — Counsel Stack

Bluebook (online)
236 N.W. 916, 61 N.D. 18, 1931 N.D. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeis-v-great-northern-railway-co-nd-1931.