70 Neb. 287 | Neb. | 1903
Lead Opinion
Troyer, the defendant in error, was injured in the freight yards of the plaintiff in error, at Lincoln, between 11 and 12 o’clock on the night of July 14, 1898. He left Aurora with a car-load of hogs on stock train No. 48, and, on its arrival at Lincoln, the train with the engine stopped at or near the O street viaduct and the rear end of the train some thirty car-lengths to the north thereof. It was the custom of the railroad company to make up another drain at Lincoln, taking such stock as was destined for South Omaha into the newly made-up train, and the stockmen were required to leave the caboose of the Aurora train and walk between the tracks in the yard, along that train, to enter another caboose which would be attached to the train destined for South Omaha. On the arrival of the train in Lincoln defendant in error and other stock shippers in the caboose -were told to leave it and make their way to the depot, awaiting the making up of another train. He left the caboose on the right hand side of the train and, together with other shippers and passengers Avho had occupied the caboose with him, made his way along the west side of his train until he had reached the south end thereof, from which the engine had, at that time, been detached. The tracks in the yard lay parallel with each other. The distance from the middle of one track to the middle of the other is 13 feet 2 inches, and between the west rail of one and the east rail of the other, 8 feet. The cars and engines project over these rails 2 feet on each side, leaving a distance of 4 feet between cars stand
The defendant in error was traveling on a drover’s contract and pass usually issued to shippers of stock. The law is well settled in this state, following, we think, the weight of authority elsewhere, that a shipper who, for the purpose of enabling him to care for his stock in transit,' receives a drover’s pass is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire; that he assumes such risks and inconveniences as necessarily attend upon caring for such stock; but that, so modified, the liability of the railroad company to such shipper, for personal injuries sustained by him from the negligence of the company or its employees, is that of a common carrier for hire. Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, 54 Neb. 747; Missouri P. R. Co. v. Tietken, 49 Neb. 130.
In Omaha & R. V. R. Co. v. Crow, 54 Neb. 747, it is said:
*290 “On the former hearing it was held that one who is being transported over a line of railroad on what has been called a ‘shipper’s ticket’ is not a passenger in such sense as to render applicable to him all the rules governing the transportation of passengers on passenger trains. Such a person is charged with the care of his live stock while in transit. He must ride on the train with the animals. He must care for them en route, and in various ways subject himself to perils not incident to ordinary travel. To the extent that such requirements interfere with the operation of ordinary rules of liability, the duty of the carrier is accordingly modified, and no further. The statute fixing the liability of carriers to ordinary passengers is, from the nature of the case, not applicable; but, subject to the different conditions reasonably arising from the special arrangements and duties created by such a contract, the common law as to carriers of passengers applies. The carrier, subject to such modifications, is still bound to the exercise of the highest degree of care of which human foresight is capable; and contributory negligence is a defense. The difference between such a case and the ordinary one of a passenger affects also the latter question. The duties imposed on the passenger, of riding on a freight train and caring for his stock, excuse conduct which would be grossly negligent on the part of a passenger on a passenger train.”
This rule, which has become the settled law of this state, disposes of the contention made by the plaintiff in error that Troyer assumed any risks not usually incident to travelers on freight trains and such as the care of his stock in transit demanded of him. Conceding to the plaintiff the right to stop the caboose at a great distance from the station and to require the shippers to walk between its tracks for a distance of 30 car-lengths for the purpose of changing cars to pursue their journey, it was its duty to furnish a safe path along which the shippers might walk, and to See that the path was not made dangerous by the operation of its train or engines. The shippers, on alight
In Jewett v. Klein, 27 N. J. Eq. 550, it is held that a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not, before approaching the train, look up and down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally from the platform to the station and before his train had come to a full stop. Referring to this case the supreme court of Colorado, in Atchison, T, & S. F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, said:
“By the foregoing and other well considered cases it is settled that a passenger on a railroad, Avhile passing from the cars to the depot, is not required to exercise that degree of care in crossing the railroad track that is imposed upon other persons, and that he has the right to assume that the company Avill discharge its duty in making the way safe; and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person not holding that relation; and this distinction is to be taken into consideration in determining the propriety of his conduct.” *
In the case of Pennsylvania R. Co. v. White, 88 Pa. St. 327, it is said:
“It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest Adgilance not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so.”
The fact that on turning to the left to cross the track where the train on Avhich he arrived was standing, the
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed May 17, 1905. Former judgment of affirmance adhered to:
Plaintiff below, defendant in error, recovered a judgment against the defendant railroad company, plaintiff in error, to secure a reversal of which the company prosecutes this proceeding in error. An opinion has heretofore been handed down, in which the conclusion was reached that the judgment rendered in the district court should be affirmed, and it was accordingly so ordered. Ante, p. 287. The statement of facts found in that opinion are challenged, and we find it advisable, in order to avoid any possible misconception of our position, to briefly restate what we conceive to be the salient features of the case material to an intelligent discussion of the questions proper to be considered in disposing of the alleged errors relied bn to secure a reversal of the judgment below. The plaintiff was a passenger on one of defendant’s freight trains carrying live stock, the destination of which was the South
1. The defendant company contends that its relation to the plaintiff is not that of carrier and passenger, but that the relation existing at the time of the injury was more nearly analogous to that of employer and employee. On the other hand, it is insisted by counsel for plaintiff that he was a passenger in the fullest sense of the word, and that the carrier must respond in damages under our passenger statute, for all injuries sustained except such as are occasioned by the criminal negligence of the passenger, or from his violation of some express rule or regulation of the company actually brought home to his notice. Compiled Statutes, ch. 72, art. 1, sec. 3 (Annotated Statutes, 10039). We are not disposed to accept either of the views thus advanced, as being a correct statement of the relations of the parties to each other, in the action at bar. At least, we do not find it necessary in this action to base the plaintiff’s right of recovery upon the broad ground that he was a passenger in the fullest sense of the word, and entitled to the full protection given by statute to passengers within the meaning of the word, as therein used, while being transported by common carriers. The decisions of this and other courts recognize, we think, a well defined distinction between passengers transported in the ordinary way and those persons traveling, as was the plaintiff/on a freight train for some special purpose connected with the passage thus provided for. In Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, it is held, by this court, that a shipper of stock, who for the purpose of enabling him to care for the stock in transit receives a drover’s pass, is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire, and that his contract of passage is under the implied conditions that he will submit to whatever inconveniences are necessarily
“He (the passenger) must ride on the train with the animals. He must care for them en route, and in various ways subject himself to perils not incident to ordinary travel. To the extent that such requirements interfere with the operation of the ordinary rules of liability, the duty of the carrier is accordingly modified. * * * The statute fixing the liability of carriers to ordinary passengers is, from the nature of the case, not applicable; but*299 subject to the different conditions reasonably arising from the special arrangements and duties created by such a contract, the commón law as to carriers of passengers applies. The carrier, subject to such modifications, is still bound to the exercise of the highest degree of care of which human foresight is capable; and contributory negligence is a defense.”
It must, we think, be accepted as the settled doctrine of this jurisdiction that a person with right of passage on a freight train, for the purpose of attending to his stock being shipped by the railroad company on such train, sustains to the company the relation of passenger to carrier, but in a restricted and modified sense. He is required to perform the duties for which his passage is provided and, for such purposes, assumes the risks incident to their performance. In fixing the liability of the carrier, then, regard must be had to the means' and methods employed by the company in the operation of its freight trains, in the accomplishment of the business for which primarily employed, and the risks and hazards inherent in and necessarily attendant on the carriage of passengers by this method.
“From the composition of such a train and the appliances necessarily used in its efficient operation, there can not, in the nature of things, be the same immunity from peril in tráveling by freight train, as there is by passenger’ trains, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train and not to the other, and it is this hazard the passenger assumes in talcing a freight train, and not hazard or peril arising from the negligence or want of proper care of those in charge of it. Ordinarily, carriers of passengers for hire, while not insurers of absolutely’ safe carriage, are held to the exercise of the highest degree of care, skill and diligence, practically consistent with the efficient use and operation of the mode of transportation adopted.” Chi*300 cago & A. R. Co. v. Arnol, 144 Ill. 261, 271. See also Olds v. New York, N. H. & H. R. Co., 172 Mass. 73.
Judged by these tests, and measuring the duties and responsibilities of the parties to the present controversy, it is for us, next, to consider and determine the question of negligence of the defendant company for the injury complained of which is relied on as a basis of recovery by the plaintiff.
2. It is contended that the negligence of the plaintiff alone contributed to his injury, and that the evidence fails to show any negligence on the part of the defendant. Whether or not the defendant company is to be held liable because of its alleged negligence in respect of the injury complained of, is to be determined by the facts and circumstances surrounding and leading up to the act, as a result of which the plaintiff came in collision with the engine of the defendant, as above stated. As the situation then existed, it became necessary for the plaintiff to find his way from the way-car in which he had been riding to the other end of the train, a distance of about 30 car-lengths. The fact that the passengers on this train, of whom there were several, were compelled to change from one car to another, and from one part of the yard to another was, we are warranted in assuming, known to the servants of the defendant company who were operating the engines, moving cars and making up the trains that were then being arranged in its freight yards. They knew, and must have known, that such a change would lead to more or less confusion and doubt as to the proper and exact place to go, and the particular place where the car would be found in which to continue their journey. It was known that this change must be made by walking some distance between the tracks. There was no well defined roadway by which passengers could go from the one place to the other. The travel necessarily was along and between parallel tracks laid close together, many of which were occupied with moving cars and engines being changed about in the yards. More or less noise and confusion of a bewildering character
3. It is contended that the plaintiff was guilty of contributory negligence, Avhich precludes any recovery on his part. This contention is based almost entirely on the proposition that he failed to use his senses of sight and hearing and thus alloAved himself to be run doAvn, as it Avere, by the moving engine on the adjoining track. It is contended that if further Avarning or knowledge was necessary, in order to induce him to be reasonably careful, that this was furnished Avhen the engine AA-hich struck him passed him going to the north, as he Avas Avalking by the side of his train toward the south, and, to avoid which, he pressed closer to his standing train in order to be entirely out of danger from its passing. It is said that he, Avithout looking backAvard, listening for or paying any attention to the running of this engine upon the adjoining
“The rule is well settled that a traveler crossing a railroad track on a public highway is bound to use his eyes and ears to ascertain whether a train is approaching; but this rule has not been held in this state to apply to passengers who are crossing a track at a station to get on a train. There is a difference between the care and caution demanded in crossing a railroad track on a highway and in crossing while at a depot of a railroad company to reach the cars. No absolute rule can be laid down to govern the passenger in the latter case under all circumstances. While a passenger has a right to pass from the depot to the train on "which such passenger intends to travel, and the company should furnish reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care, prudence and caution in avoiding danger. The degree of care and caution must be governed in all cases by the extent of the peril to be encountered and the circumstances attending the exposure.”
At the request of the defendant, the jury were instructed that, if it found from the evidence that the railroad company had been negligent in some or all of the particulars alleged against it, and it also found that the plaintiff himself had been guilty of negligence which caused or helped to produce the injury, then, the law is, if both parties are found to be guilty of- negligence, neither one could recover from the other for the injury caused by such negligence and that, in this action, the plaintiff could not recover from the railroad company. The jury were also told that, in making the transfer from one car to the other, the plaintiff was bound to make careful use of his senses of sight and hearing, and to use all the care and caution of an ordinarily cautious and prudent person, under such circum
Negligence was properly defined, and these instructions, we think, fairly submitted to the jury the question of the alleged contributory negligence of the plaintiff, and the finding of the jury must, under well settled principles of remedial law, be regarded as conclusive.
4. Complaint is also made because of the submission to the jury, by an instruction, of an issue raised by the pleadings, of the alleged negligence of the defendant company in the manner of constructing its tracks in the freight yards where the accident happened. It is contended that the petition states no cause of action in this regard, and that the evidence did not justify the submission of such a question to the jury. In the absence of any attack on the pleading and in view of the theory upon which the parties tried the case, the pleadings must, we think, be held to have presented this issue. We are disposed to the view that, with no other issue of negligence, a verdict, under 'the record as presented, in favor of the plaintiff, could not be upheld. But the allegation respecting the construction of the tracks has only an incidental bearing upon the negligence charged. The defendant company tendered an issue on this question, and its evidence was elaborate on the proposition that the tracks in the yards were properly constructed. Competent evidence was introduced on both sides in order to maintain the issue. It was spoken of, in the instructions, in connection with the other alleged acts constituting the negligence charged. The defendant, we are satisfied, was in no wise prejudiced. In fact, instructions were given, at the request of the defendant, inviting a verdict from the jury upon all questions regarding the
Upon an examination of the whole record, we are of the opinion that no substantial error prejudicial to the rights of the defendant is found therein; that the evidence supports the finding of the jury; and that the judgment rendered thereon ought to be affirmed, which is accordingly ordered.
The judgment of affirmance is adhered to.
Reaffirmed.
Dissenting Opinion
dissenting.
It is correctly stated, in the prevailing opinion, that a shipper of live stock who receives, from the railroad company undertaking the transportation of such stock, a free pass to enable him to care for his stock in transit, assumes such risks and inconveniences as necessarily attend upon that manner of travel and the caring for such stock; and, modified accordingly, the liability of the railroad company to such shipper, for personal injuries by him sustained by reason of the negligence of its employees, is that of a common carrier for hire. It follows, that the plaintiff’s right to recover for the injuries complained of in this case, depend upon some actionable negligence on the part of the defendant company. As I read the record, no such negligence is shown. The space between the railroad tracks, where the plaintiff was walking, in order to reach the caboose, as explained in the majority opinion, was wide