76 Neb. 496 | Neb. | 1906
This is a proceeding in error to review a judgment for the defendant in an action to recover damages for a personal injury.
Hicks, who lived some distance from Gothenburg, in this state, went to that village one morning, in company with three other persons, with the intent to travel thence upon one of the defendant’s railway trains to the village of Lexington, situate some distance to the eastward. Having arrived at the former town, the four persons stopped for breakfast at a restaurant lying to the northward of the railway line and passenger station of the defendant company. Before the meal was through with, it was an
The principal argument by counsel is of the question whether the plaintiff was a passenger being transported within the meaning of the statute, so as to impose upon the company the liability of an insurer of his safety. At the close of the plaintiff’s evidence the court instructed the jury to return a verdict for the defendant, seemingly upon the ground of contributory negligence, but perhaps for the reason that in his opinion there was insufficient evidence of negligence by the defendant. We are unable to adopt the idea that the plaintiff was a passenger. He had not presented himself in the defendant’s station, or upon its platform or other place provided for the reception of passengers. He had said or done nothing that indicated in any certain or unequivocal way to the company’s agents or employees or even to the bystanders, except his three companions, that he intended becoming a passenger, nor in any way committed himself to the care or control of the defendant or placed himself in its custody, so that the reciprocal relation of carrier and passenger cannot with propriety be said to have been established. That some such act must be done, and some such relation entered into, in order to render one a passenger being transported, within the meaning of our statute and under its protection, is the central idea expressed by this court, after a review of the authorities, in Fremont, E. & M. V. R. Co. v. Hagblad, 72
Neither do we think, in view of the evidence disclosed by this record, that, as a matter of law, the defendant company was guilty of actionable negligence. The train that stood upon the siding was one that in railroad parlance is called a “local”: that is, one that stopped at all the stations and did not run with great rapidity when in motion. The other is what is called a “fast mail,” which stopped at only the more important stations at long intervals of time and space, and which maintained, and presumably was under contract with the United States government to maintain, a great rate of speed. That such trains unavoidably “lose time,” or are behind their schedule occasionally, is a matter of common knowledge, as is also the fact that it is necessary for them, in order to fulfill their mission, to overtake and pass slower moving trains, and to meet and pass other trains standing upon sidings, and that such sidings are, and practically can be, maintained, at least in sparsely settled districts, only at local or way stations. That such a situation is one of considerable peril, is without doubt, but that the danger may be less than in like circumstances in more densely inhabited places is also obvious. That the company by its servants took some pains to warn the public of the dangers of the occasion is not disputed. Whether such means were such as ordinarily careful and prudent men would have regarded as commensurate with the peril or required by the circumstances is, we think, a question to be answered by the jury.
And so with respect to the conduct of the plaintiff. He was a man of mature years and a resident of the vicinage. He must be assumed, we think, to have had such general knowledge of the manner of operating the defendant’s trains, and trains upon other railroads in like places, as Avas derivable from casual observation and readily obtainable by the public at large. But whatever may be the case in cities and densely settled communities the act of “run
For these reasons, it is recommended that the judgment be reversed and a new trial granted.
By the Court: For. the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
REVERSED.