Cain v. Northern Pacific Railway Co.

Burke, J. The accident upon which this action is based occurred about 10 o’clock in the forenoon of the 28th of August, 1909, upon a crossing of the defendant company at the village of Taylor, North Dakota, the crossing being practically a street of the village, about 1,050 feet east of the depot. The defendant’s tracks at this point run practically east and west, hut from the east the roadway approaches at a three-degree curve beginning about one half a mile east of the depot and extending about 1,600 feet or until about 900 feet from the depot, where the track continues and goes straight west through the town. The crossing in question is on the curve, about 150 feet east of the beginning of said straight portion of the track. There is also a passing track south of the main track parallel thereto, and 14 feet distant therefrom. Upon the day of the accident the company was engaged in ballasting its tracks at that point, and planks had been removed from the crossing for that purpose. A steam traction engine belonging to one Tracey was being driven that day by one Brown, engineer, and one Naset, fireman, both in the employ of Tracey. They approached the crossing from the south, [476] and, desiring to cross to the north, placed loose planks between the rails,, and succeeded in crossing the first or passing track and getting the front wheels of the tractor over the main track and the rear or drive wheels between the rails thereof, but it was impossible to get the drivers over the north rail of the main track. When the tractor was in that position the men in charge discovered a train coming from the east. This discovery was made, owing to smoke from the train while at the village of Richardton, about 5 miles farther east. The men in charge of the tractor then tried to back, and succeeded in getting the drivers over the south rail and then backward until they struck the north rail of the passing track, where they stuck. In this position the boiler was over the track and the front wheels were right up against the south rail of the main track. The main crossing at this point was 18 inches above the surrounding country. The engineer of the tractor testifies in part: “After I saw the smoke I kept on trying to get over the track. I did not go back until I saw it was impossible to go ahead, then I reversed and tried to get back. I reversed and tried to get back after the train got in sight. I blew the whistle on the traction engine to give notice to the train. The whistle is one of those three-chamber whistles, pretty loud whistle. I was not surprised that he did not hear it. ... I blew the whistle when the train was pretty close to me. She was not very far away.” No other effort was made by the men in charge of the tractor to notify the train of the danger. The train was a passenger, the North Coast Limited, running late and making about 10 miles an hour. On account of the curve, the engineer was unable to see the crossing from the right-hand side of the engine, but the fireman upon the left side had a full view thereof, and testifies: “I was fireman on this engine. . . . The train where it approaches this crossing at Taylor is curved. . . . I was on the left side of the engine on the day in question. That is the south side of the track. ... I saw this traction engine about 12 or 13 car lengths from the crossing. When I saw it at that time I could not tell where it was, I just about could tell where it was,, and I couldn’t quite either. They were kind of tumbling, and I couldn’t tell whether they were on their side of the crossing. I thought they were on their side of the crossing, waiting for us to pass. When I first made out that this traction engine was on the track, we were about 8 car lengths from the crossing. I then.told the engineer to stop and he set the emergency brake. Then we went about 8 or 9 car lengths be [477] fore the train came to a stop. From my position in the cab I was prevented from telling whether this traction engine was on the track on account of the curve in the track. . . . I do not remember whether I was on my seat before we passed the east switch. When I got upon my seat I think I saw the engine about 12 or 13 car lengths from the crossing, about 1,000 feet. It took us about 1 or 8 car lengths to stop the train that day ... it took us from six to eight hundred feet to stop the train.” One Dyer, a brakeman on the train also saw the traction engine standing there. lie thought it was standing there waiting for the train to pass. The traction engine was pushed off the track and badly injured. Action was brought and judgment had in the United States district court of North Dakota. An appeal was taken to the United States circuit court of appeals, where the judgment was reversed upon the grounds that the plaintiff was guilty of contributory negligence, and a new trial ordered. Northern P. R. Co. v. Tracy, 111 C. C. A. 560, 191 Fed. 18. Plaintiff, however, instead of submitting to a new trial in the United States district court, dismissed that action and started a new one in the state court, limiting his demand for damages to the sum of $3,000, thus preventing a return of the action to the United States court. Trial was had to said state court resulting in a verdict for the plaintiff. This appeal alleged generally three grounds for reversal: First, that the defendant was not guilty of any negligence whatever; second, that plaintiff is guilty of contributory negligence; third, that the action is res judicata. All three of the propositions appeal to us strongly, but we will discuss only the second, which we have agreed, necessitates dismissal of the action, and renders unnecessary a decision upon the first and third grounds. (1) The circuit court of appeals in its opinion uses the following language: “The servants of the plaintiff realized that the train was approaching the crossing and a collision was possible when the train was yet at Pichardton, 5 miles distant. The traction engine was so massive that a collision might well result in loss of life to passengers on the train. The exigency was not so sudden as to preclude cool judgment. The train running at 40 miles an hour must have taken between seven or eight minutes to traverse the intervening distance. What effort was made to avoid the accident ? An unsuccessful attempt was made to back [478] the traction engine. This was essentially a doubtful experiment, and in this case entirely fruitless. Next, a few blasts were blown on the steam whistle. The engineer of the traction engine, familiar with the operation of trains, testified that it was no surprise to him that those blasts were not heard by the men in the cab of the locomotive. The-curve and the consequent difficulty in determining the relation of the traction engine to the railway track was patent. Some signal ought to> have been given. There was time for one of the men to have proceeded eastward along the track, and, by the waiving of a hat or coat, to have indicated the danger. If this had been done, the accident would not have happened. That it ought to have been done seems to us so clearly to accord with reason and experience as to have entitled the defendant to a directed verdict.” Plaintiff attempts to avoid the logic of the' above language by pointing out differences in the testimony taken at the two trials. The main differences being that in the latter trial a witness testified the crossing was in plain view for 2,700 feet from the east, and that there was no rolling ground or obstruction to prevent the fireman from seeing the engine. Had the track been straight an altogether different question would have arisen. The undisputed testimony is that the fireman saw the tractor in sufficient time to have avoided the accident had he realized that it was upon the main track, but. on account of the curve at which he was approaching was unable to determine the danger until it was too late. The fact that he could see the crossing for about half a mile would not be important unless, when so seeing it, he was apprised of the danger. It seems plain to us that ordinary care upon the part of those in charge of the tractor required some effort to flag the approaching train. If neither of the men in charge of the tractor could be spared for this purpose, at least a request should have been made to some of the by-standers to make the effort. Plaintiff insists that the tractor standing on the track was signal enough to warn the train,-and that if the train crew did not see it, neither would they have discovered a man sent forward to flag them. We do not believe the argument sound. Had the train approached upon a straight track, there would be still a debatable question, but on account of the curve some other warning was imperative. Had a man walked down the track, even a short distance, making any demonstration, the fireman would have discovered it. If, as argued by plaintiff, he had gone much [479] farther down tbe track and missed the fireman, yet might not he have attracted the engineer’s attention as the train was passing ? Cases supporting this are numerous; we will cite only a few: Tracy v. Northern P. R. Co. 111 C. C. A. 557, 191 Fed. 15; Elliott, Railroads, § 1179c, p. 394; Johnson v. Great Northern R. Co. 7 N. D. 284, 75 N. W. 250, 1 Am. Neg. Rep. 568. The trial court will set aside its previous order and enter a judgment for the defendant notwithstanding the verdict.