Welch v. Fargo & Moorhead Street Railway Co.

Bruce, J. (after stating the facts as above). We think that there is no merit in the appellant’s first proposition, that the judgment should be reversed because certain of the questions propounded to the jury and inserted in the special verdict called for conclusions of law and conclusions of fact, and not ultimate, physical facts. These questions and answers were as follows: “(4) Was the motorman guilty of any — 476 — want of ordinary care in tbe operation of his car at the time of the accident? Answer: Yes. (5) If you answer the last question, ‘yes/ then was such want of ordinary care the proximate cause of the injury to plaintiff? Answer: Yes.” “(9) Could the plaintiff, in the exercise of ordinary care and prudence, have seen the approaching car in time to have avoided the accident? Answer: No. (10) Was the plaintiff guilty of any want of ordinary care which contributed to-produce the injury complained of? Answer: No. _ (11) After the motorman saw the defendant drive onto the tract, did he, in the exercise of ordinary care, have time to stop the car and avoid the accident ?' Answer: Yes.” “(13) After the motorman saw, or, by the exercise of ordinary care might have seen, the plaintiff’s danger, did the motorman make a reasonable effort to reduce the car to such control that it might be brought to a standstill, if necessary, without a collision? Answer: No. (14) After the motorman saw, or by the exercise of ordinary care might have seen, the plaintiff’s vehicle on or near the track of the defendant street car company and in the line of the progress of said cai*, did the motorman make every effort to place the power which propelled such car under his control for the purpose of avoiding a collision? Answer: No.” “(16) Did the plaintiff arrive upon or near the track of the defendant street car company so far ahead of the car in question that the motorman in charge of such car, after seeing him thus exposed to danger, might have avoided injuring him by the exercise of ordinary or reasonable care? Answer: Yes. (17) After the motorman in defendant’s street car discovered, or by the exercise of reasonable and ordinary care should have discovered, the plaintiff’s vehicle on or near the track of the defendant street car company, and directly in line of the progress of the car and a possible obstacle in the way of such car, did the motorman use ordinary and reasonable care to reduce the car to such control that it might be brought to a standstill if necessary, without colliding with the plaintiff’s vehicle? Answer: No.” “(28) Was the car of the defendant railway company runing at a dangerous rate of speed, taking into consideration all the circumstances at the time of the accident or collision ? Answer: Yes.” By all of these questions the jury was, in different ways, directed to find whether appellant was guilty of any want of ordinary care, and, — 477 — if so, whether such want of ordinary care was the proximate cause of respondent’s injury. The questions of negligence and contributory negligence are both, according to the former decisions of this court find the overwhelming weight of authority, questions of fact, rather than of law, and only become questions of law when the facts are undisputed. Cameron v. Great Northern R. Co. 8 N. D. 124, 77 N. W. 1016, 5 Am. Neg. Rep. 454; Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427; Bishop v. Chicago, M. & St. P. R. Co. 4 N. D. 536, 62 N. W. 605; Mares v. Northern P. R. Co. 3 Dak. 336, 21 N. W. 5, 123 U. S. 710, 31 L. ed. 296, 8 Sup. Ct. Rep. 321; Boss v. Northern P. R. Co. 5 Dak. 308, 40 N. W. 590; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 217, 112 N. W. 972; Kucera v. Merrill Lumber Co. 91 Wis. 637, 65 N. W. 374; Bagnowski v. A. J. Linderman & H. Co. 93 Wis. 592, 67 N. W. 1131; Davis v. Chicago, M. & St. P. R. Co. 93 Wis. 470, 33 L.R.A. 654, 57 Am. St. Rep. 935, 67 N. W. 16, 1132, 10 Am. Neg. Gas. 507; Klatt v. N. C. Foster Lumber Co. 92 Wis. 622, 66 N. W. 791; Kutchera v. Goodwillie, 93 Wis. 448, 67 N. W. 729; Rysdorp v. George Pankratz Lumber Co. 95 Wis. 622, 70 N. W. 677, 2 Am. Neg. Rep. 269; Andrews v. Chicago, M. & St. P. R. Co. 96 Wis. 348, 71 N. W. 372, 3 Am. Neg. Rep. 626. The trial court properly instructed the jury as to the meaning of the terms “negligence,” “ordinary care,” and “proximate cause,” and as to the rights and duties of the traveling public and of street car companies, respectively, upon the public thoroughfares. Where this is done, interrogatories such as those propounded in the case at bar have repeatedly been held not merely proper, but to be necessary to a special verdict in a case such as that before us. Andrews v. Chicago, M. & St. P. R. Co. 96 Wis. 348, 71 N. W. 372, 3 Am. Neg. Rep. 626; Sheridan v. Bigelow, 93 Wis. 426, 67 N. W. 732; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178; McGowan v. Chicago & N. W. R. Co. 91 Wis. 147, 64 N. W. 891. “It being difficult [indeed] to differentiate between conclusions, ultimate facts and evidentiary facts when facts are close to the line dividing the inferential facts from the evidentiary facts, the only safe plan is to incorporate them in the special verdict.” Eraser v. Churchman, 43 Ind. App. 200, 86 N. E. 1029. The real things to be avoided are questions which call for a conclusion upon matters which are merely evidentiary in their nature, and which merely tend to show — 478 — tbe existence of the ultimate facts. If, however, an inference or conclusion from a fact or facts is, itself, a fact proper to be found by the jury, and is in the nature of an ultimate, constitutive fact, which is necessary to support the judgment of the court, such fact or conclusion may be made the proper subject of an interrogatory. Udell v. Citizens’ Street R. Co. 152 Ind. 507, 71 Am. St. Rep. 336, 52 N. E. 799, 5 Am. Neg. Rep. 562; Russell v. Meyer, 7 N. D. 340, 47 L.R.A. 637, 75 N. W. 262; Lathrop v. Fargo-Moorhead Street R. Co. 23 N.D. 246, 136 N. W. 88. It is to be remembered, indeed, that special verdicts are to be fairly and reasonably construed, and to be used and treated, not as pitfalls for the litigants, but as aids to the administration of justice. Clementson, Special Verdicts, p. 262; Hoppe v. Chicago, M. & St. P. R. Co. 61 Wis. 357, 21 N. W. 227; Bartlett v. Beardmore, 77 Wis. 356, 46 N. W. 494; Elizabethton Shoe Co. v. Hughes, 122 N. C. 296, 29 S. E. 339; Zimmer v. Fox River Valley Electric R. Co. 118 Wis. 614, 95 N. W. 957. It is also to be borne in mind that only those facts which are in controversy need be submitted. Schrubbe v. Connell, 69 Wis. 476, 34 N. W. 503; Heddles v. Chicago & N. W. R. Co. 74 Wis. 239, 42 N. W. 237; Burton v. Boyd, 7 Kan. 28; McGonigle v. Gordon, 11 Kan. 167; Ward v. Busack, 46 Wis. 407, 1 N. W. 107. The second point of appellant, and to which he has devoted the greater portions of his brief and argument, is that the plaintiff was guilty of such contributory negligence as precludes a recovery as a matter of law. All of defendant’s argument, however, is based upon the proposition that “respondent turned west on Front street at the Commercial Bank crossing, after looking to the rear about 150 feet to the Northern Pacific tracks, and drove at least 480 feet west to the middle of the block, and without again looking to the rear, turned suddenly across the track immediately in front of the car, in the middle of the block, and so close that the car could not possibly have been stopped, and was struck and injured.” He argues, and produces authorities upon the proposition, that when one approaches a street railway track for the purpose of crossing the same, it is his diity to both look and listen, and asserts that the evidence shows that in the case at bar, though the plaintiff may have listened, he totally failed — 479 — to look before attempting to cross the track. There might be much in this proposition if the uncontradicted evidence supported this contention, and also showed that the crossing of the tracks was (the)* a proximate or operative cause of the injury, but it does not. It shows on the other hand, at least much of the testimony goes to prove, that the side of the street car extended 3 feet'beyond the rail of the track itself on each side; that portions of plaintiffs vehicle projected 6 inches outside of the track of its wheels; and that not only just before the accident, but during practically all of the 480 feet journey from the corner of Broadway and Front street and along said Front street, plaintiff was driving with his south wheels within a few inches of the north rail of the car track, in a position of danger unless proper care was used by the street car driver, and within the track of the car, if not of the rails. He did not, therefore, according to this testimony (and it was for the jury to believe whom it chose), strictly speaking, approach the track at all. He, it is true, immediately before the collision, turned across the track to the south, but there is at least some evidence to show that he would have been struck by the car whether he had so turned or not. Such evidence, indeed, shows that he did not move from a position of safety to a position of peril immediately before the collision, or practically at any time after he reached Front street, but that he was, as a matter of fact, on account of his position near the track and the speed of the approaching car of which, according to such testimony, he had no knowledge or warning, in a position of peril all of the time that he was upon the said street. Since, then, there is evidence to show that he looked back at the time, or just before, he turned on Front street and saw no car approaching on Broadway, and that the car was running at a rate of at least 6 miles an hour (one witness testifies from 6 to 8 miles an hour; another, that it was running fast, and the jury found that it was 14 miles) we cannot hold, as a matter of law, that he was guilty of such contributory negligence as would preclude a recovery. We must remember that though there is some' conflicting evidence and much that is merely negative, there is at least some positive testimony that the gong was not sounded at all. We realize, of course, that there is a conflict in the evidence, but we also realize that plaintiff’s propositions are sustained by some evidence, at least, and that it was for the jury, and not for the court, — 480 — to pass upon tbe credibility of the witnesses. Acton v. Fargo & M. Street R. Co. 20 N. D. 434, 129 N. W. 225. Tbe judgment of tbe District Court is affirmed. Footnotes [*] See decision on rehearing p. 4S0.