Salewski v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

Christianson, Ch. J. In this action, the plaintiff seeks to recover damages for the death of his wife, which he alleges was occasioned by the negligence of the defendant. It is averred in the complaint, and the evidence shows, that the plaintiff’s wifej Tina Salewski, on June 27, 1917, was riding in a buggy which was being drawn by a single horse along Fourth avenue, in the village of Courtenay. The horse was being driven by a niece of the deceased. As they were about to cross ■ the railroad tracks of the defendant in that village, the horse became frightened at a locomotive, so that it suddenly turned and threw the plaintiff’s wife from the buggy and caused her serious injuries, from which injuries, it is alleged, that she died about two and one-half years later. The specific charge of negligence in the complaint is that the — 68 — defendant bad permitted sheds, buildings, and coal sheds to be constructed adjacent to and adjoining the railway track on the west side of Fourth avenue, in said village of Courtenay, “so that it was impossible for the said Tina Salewski or the said Hannah Bartkowski to see tho north railway track lying immediately to the right and on the westerly side of said Fourth avenue, which said track crosses the said Fourth avenue in an easterly and westerly direction; and that owing to the aforesaid premises and the aforesaid conditions, all of which were negligently permitted, kept, and maintained by the said defendant and its tenants, and by reason of the said railway track being negligently permitted to be built and maintained immediately adjacent to and within 4 feet of said buildings, and as the said Hannah Bartkowski and Tina Salewski were riding along in a buggy drawn by said horse, in a southerly direction toward, and were about to enter upon and cross the said railway tracks aforesaid, and on the northerly side thereof, suddenly and without warning and with great negligence and without ringing any bell, and without blowing any whistle, and without giving any sign or signal, and without keeping or maintaining any gate at said crossing, and without keeping any flagman or having any flagman or switchman thereat, tho agents of the said defendant company negligently, suddenly, and without warning whatsoever, carelessly and negligently pushed and moved its cars and engine with great speed and without any noise or warning, down upon the said avenue and crossing from a westerly direction, on said sidetrack and house track immediately adjacent to the said buildings, shed, and lumberyard, and suddenly and negligently scared the horse hitched to and drawing the said buggy in which the said Tina Salewski was riding, so that the horse suddenly turned and threw the said Tina Salewski from the said buggy, greatly and permanently injuring her shoulder, arm, back, and abdomen, nerves and spine, and caused her great pain and injuries and suffering, all through the negligence and want of proper and ordinary care on the part of the defendant, in its building and permitting the said buildings, sheds, lumber, and material to be placed and piled so close to its track and the said Fourth avenue, in said village of Courtenay, and its sudden pushing and shoving of said cars and engine belonging to said defendant with great negligence and without warning to the said Tina Salewski or said Hannah Bartkowski, and by reason — 69 — of its failure to give some warning sign of the approach of its engine and cars upon said railway track and crossing, and by reason of its failure to properly protect and guard pedestrians and travelers upon said highway, street, and avenue, from injury by its engine and cars.” The defendant by its answer placed in issue all the material allegations of the complaint, except the allegations relating to the corporate'capacity of and the ownership by the defendant of the railroad in question. The answer also averred affirmatively that the injuries of the deceased, if any, were occasioned by her own negligence and by the negligence of the person who was driving the horse. At the close of the testimony, a request was made for a special verdict. The court submitted the case accordingly to the jury for a special verdict upon twenty-five questions. No general verdict was returned. The court gave instructions to the jury wherein it defined the terms, “negligence,” “approximate cause,” and “contributory negligence.” The questions and answers embodied in the special verdict are as follows: Question 1: Was the Minneapolis, St. Paul, & Sault Ste. Marie Kailway Company, a corporation, organized and doing a general railway business of North Dakota in 1917, and was said company on the 27th day of June, 1917, operating a local freight train and doing switching in the village of Courtenay and across Fourth Avenue? Answer: Yes. Question 2:- On the said 27th day of June, 1917, were Hannah Bartkowski and Tina Salowski riding in a buggy, drawn by a single horse on Fourth avenue, in Courtenay, North Dakota, and approaching the crossing of said railway company on said Fourth avenue? Answer: Yes. Question 3: Did said railway company have three separate tracks running through the village of Courtenay, across Fourth avenue, on the 27th day of June, 1917, and was the north track of said railway company known as the house track ? Answer: Yes. Question 4: On the 27th day of June, 1917, in the village of Courtenay, on Fourth avenue, north of the house track of said railway company, did the horse attached to said buggy become frightened, and did an accident occur ? — 70 — Answer: Yes. Question 5: If you answer the above question “Yes” then I will ask you at what distance on Fourth avenue, north of the crossing on the house track’ did the horse become frightened and the accident take place ? Answer: Thirty-five feet. Question G: Did Tina Salewski sustain injuries by reason of any accident, at or about that time and place ? Answer: Yes. Question 7: At the time of such accident, if any occurred, was the said railway company’s engine and train, approaching Fourth avenue at the crossing of the railroad on the house track ? Answer: Yes. Question 8: At what rate of speed was said engine and train approaching and coming upon said crossing ? Answer: Six miles an hour. Question 9: Was the bell being rung or the whistle blown? Answer: Yes. Question 10: At the time said engine was approaching the crossing, did one of the train crew, one Louis Larson, appear on the said railway crossing of Fourth avenue, warning Tina Salewski and Hannah Bartkowski to stop in the street north of said crossing? Answer: No. Question 11: Did said Louis Larson go north across said tracks, in front of the engine, entering upon Fourth avenue, warning Tina Salewski and Hannah Bartkowski of danger ? Answer: Yes. Question 12: Did Tina Salewski and Hannah at the time they were driving down Fourth avenue approaching said house track look east and west for -approaching trains? Answer: Yes. Question 13: What fencing, wood, or brick, if any, were there on the cast of the coal shed and the intersection of Fourth avenue and the house track? Answer: Part of old fence, one pile of brick, one pile of wood. Question 14: Did Tina Salewski see, or could she by looking have — 71 — seen, the engine approach said crossing prior to the time the accident happened ? Answer: No. Question 15: Did the coal sheds, fencing wood, or brick, if any there were, prevent Tina Salewski and Hannah Bartkowski from seeing the engine approach ? Answer: Tes. Question 16: Could said Tina Salewski and Hannah Bartkowski, by the exercise of reasonable and ordinary care, have seen or heard the engine approaching, and have stopped their horse and prevented the accident ? Answer: No. Question 17: Was said railway company negligent at this time and place in handling and operating its railway engine and train? Answer: Yes. Question 18: If you ansAver the foregoing question “Yes,” then was such negligence the proximate cause of the injury Avhich said Tina Salewski received? Answer: Yes. Question 19: Was Tina Salewski herself negligent in her manner of driving towards said railway engine and crossing or by failing to look and listen for the train? Answer: Yes. Question 20: If you answer the foregoing question “Yes,” then did such negligence contribute to her own injury? Answer: Yes. Question 21: Was the injury the result of á pure accident for which no one was to blame? Answer: Yes. Question 22: What is the reasonable value of the medical services in taking care of and treating said Tina Salewski? Answer: Difteen hundred dollars. Question 28: Did Tina SaleAvski die on the 19th day of October, 1919? Answer: Yes. Question 24: Was the injury received by her, if any, on the 27th day of June, 1917, the proximate cause of. her death?' — 72 — Answer: Yes. Question 25: What is the value of the household services of Tina Salewski, of which Jacob Salewski has been deprived by reason of her death? Answer: Fifty dollars a month. Upon such special verdict, the trial court entered a judgment in favor of the defendant. Thereafter, plaintiff moved for a new trial upon the grounds of errors of law occurring at the trial; failure of the evidence to justify the answers to questions 19, 20, and 21; and refusal to submit certain requested interrogatories and to give certain requested instructions. The trial court made an order denying a new trial, and the plaintiff has appealed from the judgment and from the order denying his new trial. The respondent contends that the proceedings upon the motion for a new trial were fatally defective; and that in contemplation of law no motion for a new trial was ever made. It seems that the trial court entertained somewhat similar views, for in his memorandum opinion denying’ the motion for a new trial he said: “I therefore deny the motion for a new trial upon the ground that proper steps have not been taken ... to bring the errors assigned to the attention of the court in the manner provided by statute, for review.” The trial court did not, however, rest its decision upon this ground alone. He further said: “It is clear from the special verdict that the jury deliberately intended to find that the plaintiff was guilty of contributory negligence, in this action, and to defeat the plaintiff’s right of recovery, and in this respect I am in full accord with the finding and determination of the jury. Whatever discretion I have to exercise in this case is exercised against granting a new trial, upon the ground that I believe the plaintiff is not entitled to a recovery in this action, upon the evidence submitted to the jury.” We do not find it necessary to determine whether the trial court was correct or incorrect in its views as to the procedural questions, for we are entirely satisfied that the order denying -a new trial should be affirmed on its merits. There was square conflict in the evidence as to what distance from the railroad track the accident occurred. The plaintiff’s witness Hannah .Bartkowski testified that the accident occurred some 8 or 10 feet — 73 — from the crossing. Other witnesses who testified for plaintiff placed the distance at from 15 to 20 feet. The witnesses who testified for the defendant claimed that the distance was considerably greater. The jury found (in answer to the 5th interrogatory) that the accident occurred 35 feet from the crossing. There was also a square conflict in the evidence as to whether the bell on the locomotive was being rung at the time of the accident, and shortly prior thereto. There were many witnesses who testified on the part of the defendant that it was being rung, and some testified on the part of plaintiff that they did not hear it; and that they would have heard it if it was being rung. There was absolutely no evidence to the effect that the whistle was blown at any time while switching was being done; and there is positive testimony to the effect that the whistle was not blown at the time of the accident or shortly prior thereto. In view of the evidence there can be no room for doubt but that the jury, in their answer to the ninth interrogatory, must have found that the bell was being rung as testified to by defendant’s witnesses. The ninth interrogatory really contained two questions: (a) Was the bell rung? (b) Was the whistle blown? As a general rule, a question for a special verdict should not be framed in the alternative or disjunctive. It should be plain, single, and direct. A violation of this rule may introduce into the verdict an element of uncertainty. Thus if in this case the defendant had contended that the locomotive gave signal of its approach to the crossing in question, both by blowing the whistle and by ringing the bell, and the plaintiff had contended that neither signal was given, then of course it might have been possible that some of the jurors might have found that the bell was being rung, but that the whistle was not blown, while others might have found that the whistle was blown, but the bell was not being rung. But that is not the condition here. In this case there was absolutely no evidence and no contention that the whistle was blown as the locomotive approached the crossing. Whatever evidence there was on this question was all to the contrary. If the question had been divided into two parts, the jurors, as reasonable men, could not possibly have said that the whistle was blown. The great preponderance of the evidence, however, was to the effect that the bell was being — 74 — rung; and there can be no room for doubt but that is what the jury found, and intended to find, in their answer to the ninth interrogation. The evidence adduced on the part of the defendant was to the effect that one of the brakemen on the train, one Louis Larson, was stationed at the crossing while the switching was going on. The evidence adduced by the plaintiff was to the contrary. Larson testified: “I stopped in here somewhere (indicating on a certain map) between the passing track and the house track. To the east of the center of the avenue, I saw a bay horse driving up the road. Driving towards me from the north on Fourth avenue. There were two women in the rig. I stood on the crossing for the purpose of protecting it, while the train was working. That was part of my duty. Q. What did you do, if anything, while flagging the crossing there, when you saw that train start to move over the crossing cast ? A. I held up my hand like this [indicating] for them to stop, because I seen they were getting too close to make the crossing. . . . Q. What did you do after holding up your hand ? A. I stood there for a minute. Q. A second or two, you mean ? A. Yes, and the engine came up to the crossing, a little closer, and I saw the horse start to turn, and I ran over ahead of the engine. Q. You ran over where? A. To the north side. It will be noted that the court submitted two • questions relating to the warning claimed to have been given by Larson, viz., questions 10 and 11. A number of witnesses testified with reference to whether such warning was given and as to where Larson was at the time it was given. One witness testified that Larson made two attempts to stop the approaching rig. Apparently the court was of the opinion that the evidence required the submission of two separate questions upon this phase of the case. The jury answered the first one in the negative and the second one in the affirmative. It will be noted that the affirmative answer to the 11th interrogatory is in accord with the testimony of the witness Larson. The tenth interrogatory asked the jury if “at the time said engine was approaching the crossing, did . . . one Louis Larson, appear on the said railway crossing of Fourth avenue, warning — 75 — Tina Salewski and Hannah Bartkowski to stop in the street north of said crossing? ” The jury could not 'well have answered this question in the affirmative if they believed the testimony of Larson; for according to Larson’s testimony he did not come forth into view from a distance or from a place or state of concealment (Eunlc & W. New Standard Diet.) “at the time said engine was approaching the crossing ; ’ but was then, and had for some time been, stationed at a certain point between the passing track and the house track. Nor according to his testimony did he give any directions to the two women as to where they should stop. He merely gave them the usual signal with his hand, warning them of the approaching train. We see no reason for holding that the answers to the two interrogatories are inconsistent. Intelligent men would not have been likely to have answered the 11th interrogatory in the affirmative, if they had believed that Larson was not in fact stationed at the crossing, and had not in fact given the warning he claimed to have given, and gone over the track ahead of the approaching locomotive as he testified that he did. Hence, we have this situation established by the findings of the jury. The plaintiff and the deceased came driving from the north towards the railroad crossing. An engine of the defendant, which was ringing a bell, approached the crossing at the rate of G miles per hour; a brakeman signaled them by holding up his hand; the horse became frightened at the engine, and started to turn, with the result that the- deceased fell out of the buggy and was injured. This occurred 35 feet away from the track. In connection with these findings it is permissive to consider the facts which are Uncontroverted. Swallow v. Eirst State Bank, 35 N. D. 60S, 616, 161 N. W. 201. There is no dispute as to how the accident occurred. There is no claim that the engine collided with the horse and buggy. The claim is, and the evidence shows, that the horse became frightened at the engine, and started to turn towards the east; that the driver, Hannah Bartkowski, dropped, the reins and jumped out; that the buggy was not overturned, but that it was tilted, and the deceased fell out. The driver, Hannah Bartkowski, when called as a witness for the plaintiff, testified: I went up to the Piper-Howe Lumber Company, “and got some trimming for the house, and then I turned around and went back south again; didn’t go faster than a slow trot, and there was a man driving in front of me on a lumber wagon, well, — 76 — a little ways ahead, and I was driving just the slow trot, looking west as far as I could look and east, and a couple of times looked straight ahead, and I couldn’t see or hear anything, and all at once that farmer waved at me in front of me, and I stopped the horse just immediately the train came by, and the horse got scared and turned towards the east and I jumped out, and my aunt was thrown out.” There is no contention that the engine made any undue noise, or that there was anything unusual about it or its operation whatsoever. It is essential that railroads be operated. And “as a general rule the principle is uneontroverted that a railroad company is not liable for the frightening of animals, where such a insult ensues from the ordinary use, movement, or situation of its cars, locomotives, or trains. This proposition, of course, implies that it has a lawful right to make all such noises as are necessarily connected with the proper transaction of its business, such as the blowing of a whistle by a locomotive engine, or the emission of steam, where the engine is propelled by it, and such act is a necessary incident to its use. The general rule applies whether the frightening occurs at a railroad crossing or on an adjoining highway, as, generally speaking, the duty of keeping a lookout and of giving warning is limited to the track and public crossing. Necessarily the duty of a railroad company towards the drivers of horses on adjoining highways must be limited in its scope to harmonize it with other duties imposed by the rules of the statutory and the common law. Trains must be run on schedule and at high speed, crossing signals must be given, and it is the duty of an engineer to keep a lookout for crossings. All the perils occasioned to the wayside traveler by noises and sights necessarily produced in running trains in the country on schedule are things that the traveler must guard against, not perils that the operators of trains must watch for and prevent. So, no liability attaches where injury results to a horse from becoming frightened by the giving of the usual signals as required by law, or by the rales of the railroad in the ordinary operation of tLo train. The law, however, imposes on a railroad company the duty of operating trains relatively to adjacent highways so as not unnecessarily to interfere with the rights of individuals traveling such highways, or to endanger such travelers by unusual and unnecessary noises and if it does anything unusual or — 77 — unnecessary which would naturally be calculated to frighten ordinarily well-broken and gentle horses, it may be held liable.” In Dewey v. Chicago, M. & St. P. R. Co. 99 Wis. 455, 75 N. W. 74, 4 Am Neg. Rep. 92, the supremo court of Wisconsin said: “They [tho railroad company’s servants] had a right to move the engine in. pursuit of defendant’s business in which they were engaged, and without responsibility on defendant’s part for the consequences of any of the ordinary noises which the operation of the engine caused, or such incidents as the ordinary escape of smoke and steam. If such were not tho case, railway companies would be greatly embarrassed in the performance of the duties they owe to tho public. There appears to have boen an utter failure to show any excessive or unreasonable blowing off of steam, or any unusual noise, or anything not ordinarily attendant upon the usual movements of a locomotive. That where injuries result from the frightening of horses by the sight of moving cars, trains, or locomotives, or the usual noises or incidents of their ordinary operation, there is no liability on the part of the railway company, is firmly established and recognized as the law. Abbot v. Kalbus, 74 Wis. 504, 43 N. W. 367; Cahoon v. Chicago & N. W. R. Co. 85 Wis. 570, 55 N. W. 900; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Elliott, Railroads, § 1264, and numerous cases cited. See also Walters v. Chicago, M. & St. P. R. Co. 104 Wis. 251, 80 N. W. 451, 6 Am. Neg. Rep. 737; Hendricks v. Fremont, E. & M. Valley R. Co. 67 Neb. 120, 93 N. W. 141; Crowley v. Chicago, St. P. M. & O. R. Co. 122 Wis. 287, 99 N. W. 1017; Chicago, B. & Q. R. Co. v. Roberts, 3 Neb. Unof.) 425, 91 N. W. 707; Dotson v. Michigan C. R. Co. 187 Mich. 650, 153 N. W. 1065. Under the facts in this case, as established by the uncontroverted evidence, and the findings of the jury, we are of the opinion that plaintiff is not entitled to recover. In order to warrant a recovery for the plaintiff, he must show, and the special verdict together with the uncontroverted facts, must establish, that tho defendant was guilty of negligence, and that such negligence was the proximate cause of the injury for which compensation is sought. This court has ruled that “tho failure of a special verdict to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden of proof rests to establish such fact.” Boulger v. Northern P. R. Co. 41 — 78 — N. D. 316, 171 N. W. 632. Here it is not a ease of failure to find in favor of the party having the burden of proof, but a caso where the specific facts have been found against him. And while it is true the jury, in answer to the 17th interrogatory, said that the defendant was negligent at the time and place in handling and operating its railway engine, the answer to the interrogatories covering the specific facts are to the contrary. “Positive findings as to material facts which are conclusive of the controversy overcome those which are merely incidental.” Boulger v. Northern P. R. Co. supra. And we have failed to find any evidence tending to show that there was anything out of the ordinai’y in the operatioxi aixd handling of the engine, — certainly there is no evidence that any undue or uxxusual noises were made. The proximate cause of the injury was the fright of the horse. That fright x\"as not, under the facts as found by the jury, caused by anything xxnusual or unnecessary doixe by the defexxdant ixx the operation of its engine. Inasxnuch as the jury in effect found that the ixxjury was not oceasioxxed by defendant’s xxegligexxee, the errors assigned by appellant xxpoxx the failure of the trial court to give certaixx instructions and submit certain interrogatories bearing on the question of contributory negligence become immaterial. Deisenrieter v. Krause-Merkel Malting Co. 92 Wis. 164, 66 N. W. 112. Appellant contexxds that under the rule laid down- in Nygaard v. Northern P. R. Co. 46 N. D. 1, 178 N. W. 961, he was entitled to a new trial. In that case the trial court granted a new trial on the ground that it believed it should have given more explicit instructions on certain phases of the case. Ixx affirming that decisioxx a majority of this coux’t held that the trial court “exercised a discretionary right in granting a new trial, and did not abuse its discretion in so doing.” It has been said: “A test of what is within the discretion of a court has beexx suggested by the qixestion, May the court properly decide the poixxt either way ? If not, then there is no discx*etion to exercise. If there is no latitude for the exercise of the power, it caxxnot be said that the power is discretionary.” ITayne, New Tr. & App. Eev. ed. p. 1650. This principle was recognized in the decision in the Nygaard Gase. Por in the majority opinioxx it was said: “If . . . the trial court should have dexxied the. motion for a new trial, the contentions of the appellant might be considered well taken, and the order of — 79 — the trial court, in such event, should probably not be disturbed.” 178 N. W. 963. In this case the trial judge exercised his discretion against the plaintiff. He was of the opinion that the ends of justice would be best subserved by denying a new trial. On the record before us we see no reason for saying that the trial court was in error in ruling as it did. On the contrary, we are inclined to the view that the ruling was entirely correct. The judgment and order must be affirmed. It is so ordered. Robinson and Btruzele, JJ. concur.