Rozell v. Northern Pacific Railway Co. , 39 N.D. 475 ( 1917 )

Bruce, Ch. J.

This is an action for damages which are alleged to have been sustained by reason of a team taking fright at some kegs of nails or spikes and running away.

The accident happened in the town of Medora and at or near a crossing of the defendant and on a road which passed by the depot. The road had never been legally laid out, but was simply a winding trail along the river which had been in use for many years. The crossing over the river was put in in September, 1884. Just before reaching the railway crossing, as one drives north toward the town of Medora on this road, there is a wooden bridge which is about 3 feet lower than the grade of the tracks. The kegs in question were about 5 feet north of the tracks and on ground level with them, and from 10 to 30 feet of the traveled highway. One approaching the tracks from the south would have no difficulty in seeing them.

There had been a wreck in the yards at Medora on August 24th, and these spike kegs were unloaded on the 25th to be used in repairing the track. The accident happened on the 27th day of August. The kogs were just west of the depot. Medora is a small town having a population of about 150 people, and there are no depot accommodations for freight of this kind. It, in fact, never appears to have boon the custom of the railroad company to put dead freight of this kind into the depot.

The case is not one of a regularly dedicated or appropriated highway, but of a highway merely by prescription or sufferance. The proof, in fact, is far short of showing it to be a highway even by prescription. Burleigh County v. Rhud, 23 N. D. 362, 136 N. W. 1082.

If the defendant had been an ordinary landowner it is very clear that there would have been no liability on its part, as not only are the liabilities of one who consents to a highway by prescription or by license merely confined to the track itself (see State v. Auchard, 22 Mont. 11, 55 Pac. 361; Davis v. Bonaparte, 137 Iowa, 196, 111 N. W. 896; Bayard v. Standard Oil Co. 38 Ore. 138, 63 Pac. 611; O’Donnell v. Chicago, M. & St. P. R. Co. 69 Iowa, 102, 28 N. W. 164), but, to quote from the language of the supreme court of Pennsylvania, “if a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow or a wagon standing on his own premises by the side of the highway, except at the risk of having his whole estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed.” See Piollet v. Simmers, 106 Pa. 95, 51 Am. Rep. 196.

To again quote: “The principle is freely conceded that every person must so use his own property as not to injure others, and if he in a reckless, wanton, and wilfully negligent manner makes such use of his property as to injure others, he may be held liable in damages. It is equally true, however, that an owner of real estate has a right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use in order to relieve him fom liability for damages on account of injuries incidentally resulting to a traveler on the highway.” Davis v. Pennsylvania R. Co. 218 Pa. 163, 12 L.R.A.(N.S.) 1155, 67 Atl. 777.

Although it is no doubt true that, if a railway company allows a crossing it must use ordinary care to keep such crossing in a safe condition, no different rule applies in the case of such a company than in that of an ordinary person.

The question is after all one of negligence; and although this question of negligence is ordinarily one for the jury, and in many cases of obstructions or unusual objects at a crossing, the question has been held to be a mixed question of law and of fact, it is almost everywhere held that no proof need be introduced in the line of opinion evidence as to the tendency of the article to frighten horses, but that at most the matter is one which “is to be determined by the experience, observation, and intellect of the courts and jury as applied to all the facts of the particular case before them.” Cleveland, C. C. & I. R. Co. v. Wynant, 114 Ind. 525, 5 Am. St. Rep. 644, 17 N. E. 118. There must also be some limit to liability and some reason; and the cases all recognize the fact that in some instances the nature of certain objects is a matter of such general knowledge that the courts may take judicial notice of the same, and that in such cases the question is one of law and of law alone. See Gilbert v. Flint & P. M. R. Co. 51 Mich. 488, 47 Am. Rep. 592, 16 N. W. 868, cited in Cleveland, C. C. & I. R. Co. v. Wynant, supra.

It must be remembered that in the case at bar the kegs were not placed in the highway but from 10 to 30 feet therefrom. They were placed upon the defendant’s own property; and though perhaps it was not absolutely necessary to the work for which they had been obtained, namely, the repair of the tracks after a wreck, that they should have been put in that particular place, they were being used in that work, were placed where they were for that purpose, and were much in the same situation as the sacks of grain which the farmers everywhere in North Dakota scatter in their fields and along their highways during seeding operations, and as the machinery which they leave in the fields, and the sacks, tools, and utensils which they leave around their dwellings.

The question is, Would a reasonably cautious and intelligent man have anticipated that any danger to the traveling public would have arisen from such an act ?

We think not, and that there is no room for reasonable men to differ on the proposition. Such being the case, the point is one for the court, and not for the jury, to pass upon.

We must of course take judicial notice of the nature and appearance of nail kegs. There is nothing in them more dangerous in appearance or more calculated to inspire fright than in a stump of a tree, a stone, a government mail box, or a sack of grain.

The testimony also shows that there was a bridge on the road to the south, the north end of which was 27 feet from the center and only 2.7 of an inch lower than the crossing. It is therefore clear that the plaintiff, when sitting in the seat of the wagon or buckboard, was in clear view of tbe kegs, as, in fact, must any person of ordinary height have been even though walking upon the ground; and although the kegs might have been hidden while passing through the intervening portion of 27 feet, their existence must have been clearly known.

We are of the opinion that no negligence was shown on the part of the railway company. The judgment of the District Court is therefore reversed, and the cause ig remanded with directions to dismiss the complaint.

Grace, J. I dissent.