34 Neb. 479 | Neb. | 1892
This action is for damages for injury received by defendant in error’s horse while crossing the railroad track upon
It is undisputed that in January, 1889, while defendant in error was crossing the railroad track with his team and wagon,'at a public road crossing at the town of Trumbull, in Olay county, on the line of railroad running from Aurora to Hastings, the fore foot of one of his horses was caught in the space between one of the planks of the crossing and one of the rails, throwing the horse violently to the ground, dislocating the shoulder and twisting the foot thereby permanently injuring the animal.. The contention of the plaintiff below is that the injury was occasioned by the negligence of defendant in permitting the crossing to remain in a dangerous ór unsafe condition, while, on the other hand, the defendant insists that the injury was the result of an accident; that the crossing was properly constructed, and was not out of repair. As a further defense, the company sets up that it neither owned nor operated the line of railroad in question. The crossing was constructed by placing planks three inches in thickness on the ties between the rails. The planks were of the usual thickness, and the upper edges of those next to the rails were beveled. The distance between the rail and the upper bevel of the planks was three or four inches, and there is evidence tending to show that the lower edge was an inch and a half from the rail. The toe of the shoe of the horse became fastened between the board and rail.
■ It also appears that the flange on the wheels of locomotive engines and cars, when new, are one and a half inches deep and about the same in thickness, and, on account of the oscillation of the wheels, it requires a space of two and a half inches between the rails and planks for the wheels to pass safely, where the upper edges of the planks are not beveled, but when so beveled, the space can be, and usually is, less; that in such case the lower bevel of the plank can be placed with entire safety within a half-inch of the rails.
Section 110, chapter 78, Compiled Statutes, declares that “ any railroad corporation, canal company, mill owner, or any pei’son or persons who now own, or who may hereafter own or operate, any railroad, canal, or ditch that Crosses any public or private road, shall make and keep in good repair good and sufficient crossings on all such roads, including all the grading, bridges, ditches, and culverts that may be necessary within their right of way.”
By the above provision it is made the duty of'every railroad company in this state to properly construct and maintain in. good repair its road at the crossings of highways, so that the same shall be safe and convenient for travelers, so far as it can do so without impeding the safé operation of the railroad. The duty and obligation thus imposed makes the corporation liable for damages resulting from the negligent discharge of such duty. For mere accidents occurring at crossings in suitable repair there can be no recovery. It is only where the railroad company negligently constructs a crossing over a public road, or negligently fails to'keep the same in safe repair, and by reason thereof a person without fault is injured in his property while traveling over the crossing, that the company is liable for the damages sustained.
The only remaining question to be considered is, Did the defendant own or operate the line of railroad when the injury occurred? Upon the trial the plaintiff in error introduced in evidence the articles of consolidation between it and the Chicago, Burlington & Quincy Railroad Company, which constituted the entire proof on the part of the company upon this branch of the case. By these articles of consolidation the lines of road and property of the
The judgment is
Affirmed.