78 Neb. 541 | Neb. | 1907
On the night of February 18, 1904, Gustave A. Mann, plaintiff below, fell into an ash pit between the rails of the railroad track of the defendant company while passing from the depot to the caboose of a freight train in which he was about to take passage from the city of Minden to his home in the city of Hastings. The result was a broken leg, to recover for which he brought this action against the company. Judgment being entered in his favor, the railroad company has taken error t- diis court.
The material facts from which the question of the liability of the railroad company must be determined are the following: Mann, with four companions had been attending a shooting tournament at Minden, and went to the station in the evening in order to take a freight train to his home in Hastings. He was traveling agent for a brewing company, and had occasion in the course of his business to' make use of the freight trains of the defendant company. For this purpose he procured a permit from the railroad officials authorizing him to ride upon trains which did not carry passengers, except by special permission. The permit is in the following language: “Burlington & Missouri River R. R. Go. in Neb. (Chicago, Burlington & Quincy Ry. Co. Lessee.) Freight Train Permit. No. A 1027. 1904. Conductors, Freight Trains: When presented with regular transportation this will be your authority to carry Mr. G. A. Mann, Representing Dick Bros., between points where your train stops for other business. This permit is subject to conditions printed on back, which must be signed in ink by the per
From the fact that the freight train which the parties Avere to take was late, they had to remain some time at the defendant’s station. The train, on its arrival, stopped upon the first track north of the main track of defendant’s road, the space betAveen the two lines of track being about eight feet. The engine of the freight train was east of the depot, and the caboose several hundred yards to the west thereof. The train arrived in Minden about 9 o’clock P. M., the night being very dark. Some time after its arrival it was suggested by a Mr. Barnhardt, one of Mann’s companions, that it would be well to go doAArn in the yard and board the caboose, as it might not stop at the depot. The entire party then started for the caboose, going along the south side of the freight train, Avhich consisted of about sixty cars. They traveled in the space betAveen the north and south tracks until they came to a pile of cinders. They
At the request of the plaintiff below, the court instructed the jury as follows: “The jury are instructed that when the carrier- of passengers by railroad does not receive passengers into the car at the platform erected for that purpose, but suffers passengers to enter at out of way places, it is its duty to use its utmost care in preventing accidents to passengers while so entering, and to provide for them a safe and convenient way and manner of access to the train, and to prevent, so far as possible, the interposition of any obstacles which would necessarily impede or expose them to harm while proceeding to take seats in the cars. And if you find in this case that defendant’s agents were negligent, within the meaning of this instruction, .and that the plaintiff was injured thereby, and you should find that the plaintiff did not, on his own part, contribute by his negligence to such injury, then your verdict should be for the plaintiff.” The court further instructed the jury, in substance, that Mann on the way from the depot to the car was a passenger, and was not required to exercise that degree of care that is imposed on other persons, but had a right to assume and rely upon it that the company would make his way safe so that he might neglect precautions which are ordinarily imposed upon a person not a passenger, and that the company was required to exercise the strictest vigilance for his safety.
This brings us to the question of the defendant’s duty to the plaintiff at the time the accident occurred. While Mann and the defendant company may have sustained, in a limited way, the relation of carrier and passenger,
For the foregoing reasons, the judgment of the district court is reversed and the • cause is remanded for further proceedings according to law.
Reversed.