44 Neb. 848 | Neb. | 1895
Metcalf sued the railroad company to recover damages1 for injuries done to a team of mules, a wagon, and set of harness which had been struck by a train of the company near the station at Hampton. There was a verdict and judgment for the plaintiff for $365.42, to reverse which the railroad company prosecutes error.
The evidence upon which the verdict is evidently based tends to show that at Hampton the plaintiff in error’s railroad passes through the village in an easterly and westerly course, nearly all of the inhabited portion of the village lying north of the tracks. There is a side track, with switches at either end, lying north of the main line. The station is situated between the main line and the side track at a point not far from the west switch. .Two highways cross the tracks, one being Third street, or, as the witnesses designate it, Main street, about 275 feet east of the depot. The other, a section line road at the east boundary line of the village, about 1,000 feet from the depot. In addition to these crossings there are two others, one immediately east and one immediately west of the depot platforms. These crossings are not on public highways, but were placed by or at least with the consent of the railroad company for the purpose of affording access to its depot and platforms. The main line, the side track, and the depot platform outline a triangle west of the depot, and one of the crossings referred to affords an entrance to the space thus inclosed. The primary object of this crossing was to afford access for teams to the west platform. • In unloading and loading cars standing on the side track to the west of the depot it
Of the errors assigned it will be necessary to consider only those relating to the instructions. Complaint is made of the refusal of each of the instructions numbered 4, 5, 6, 7, 10, and 11 asked by the defendant. Of these the refusal of the tenth is the only assignment noticed in the briefs, and the others must, therefore, be deemed waived. The record does not contain any instruction numbered 10, so that we are unable to consider whether or not its refusal was erroneous. The seventh instruction given by the court is as follows:
“ No. 7. The jury are instructed that if the evidence*855 shows that the crossings immediately east and west of the ■depot at Hampton, were placed there by the railroad company for the use of persons having business at or about the depot in either loading or unloading cars, and such crossings were in fact so used generally, then it was the duty of the person in charge of the engine in question to sound the signal provided by law, precisely the same as for any ■other crossings, and as elsewhere explained in these instructions.”
Section 104, chapter 16, Compiled Statutes, is as follows: ■"Sec. 104. A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least ■eighty rods from the place where the said railroad shall eross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, (under penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect.” It is argued that a proper construction of this section limits its application to public highways, and that the crossing where the accident occurred is not within the purview of the law, and that the instruction was, therefore, erroneous. We do not think the statute should be given so narrow an application. Some courts have held that such a statute is in derogation •of the common law, and, therefore, the subject of strict •construction, but we think in most of the cases where such •statutes have been confined in their application to public highways, the language of the statute was such as to •evidently call for such restriction. The object of the law was plainly to afford ample warning to persons near the railroad at points where they might lawfully cross, and where they were probably about to cross as trains approached. These crossings were expressly designed to afford access
The eighth instruction is as follows:
“No. 8. The court instructs the jury that by the laws of this state, every railroad company is required to have a bell of at least thirty pounds weight, and a steam whistle, placed and kept on each locomotive engine, which shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have passed said road or street, and that the company shall be-liable for all damages resulting by reason of a neglect to-comply with such law. Now if the jury believe from the evidence that the persons in charge of the engine in question omitted to sound a whistle or ring a bell continuously for the distance ef eighty rods before reaching the crossing at which the team in question was struck, and you further believe from the evidence that the team was struck as charged in the petition in consequence of the omission to ring the bell or sound the whistle while the person in charge of the team was in the exercise of all reasonable care and caution-in the matter, then the defendant railroad company is liable to the plaintiff for the loss and damage sustained by him by reason of such injury, if any such has been proven.”
On the first question suggested the authorities may be grouped in three classes. It has been sometimes held that the object of such a statute is solely to warn persons on a highway approaching and about to cross the tracks, and that, therefore, where the injury was sustained by any other person the failure to obey the statute was no evidence of negligence. Among the cases so holding are: St. Louis & S. F. R. Co. v. Payne, 29 Kan., 166; Missouri P. R. Co. v. Pierce, 33 Kan., 61; Neeley v. Charlotte, C. & A. R. Co., 33 S. Car., 136; O’Donnell v. Providence & W. R. Co., 6 R. I., 211. The case of St. Louis & S. F. R. Co. v. Payne, supra, was one very similar to this in its facts. It may here be observed that, in many cases where the rule has been stated in language similar to the above, the injury was suffered by someone on the tracks at a place other than a lawful crossing, and the language was not used to distinguish between persons about to cross and persons lawfully on the highway at or near the crossing, but not intending to cross. This distinction seems to have presented itself to Judge Brewer in St. Louis & S. F. R. Co. v. Payne, and he says that he concurred solely upon the ground that the plaintiff was not upon the highway. In another class of cases it is said that where the injury was
The second question presented by the instruction under consideration is also one upon which courts in different states have reached different conclusions. In some states it is held that the violation of a statute or ordinance is negligence in law, while in others it is held that it is merely evidence of negligence. We think a consideration of the decisions of this court compels a solution of the question here without regard to authorities elsewhere. In the City of Lincoln v. Gillilan, 18 Neb., 114, it was held that even where the facts are undisputed, if upon such facts different minds may honestly draw different conclusions as to whether or not such facts establish negligence or the absence thereof, the question as to the conclusion to be arrived at is for the jury and not for the court. The rule there laid down, stated in those words, stated in equivalent language, or assumed without definite statement, has formed
As to the measure of damages, the court instructed the jury that if they found for the plaintiff, his damages should be assessed “in the reasonable market value of the property at the time either destroyed or injured, and afterwards taken into its possession by the defendant company,” together with interest. This instruction assumed a state of facts not borne out by the evidence. The plaintiff’s manager refused to takeaway the living mule and the remnants of the harness and wagon, whereupon the station agent caused the mule to be cared for, and the two collars, which seem to have been the only portion of the harness left in
Reversed and remanded.