70 Neb. 571 | Neb. | 1903
The track of the defendant company extends easterly and westerly from a point in this state where there is a passenger station, and an unincorporated village called Holbrook. Immediately to the westward of the station the track is crossed at right angles by a public road. About 180 feet north from the crossing, begins a scattered row of houses on the east side of the highway, merging some distance further northward in a cluster of buildings constituting the hamlet. The station house stands on the opposite or south side of the track. From the crossing eastward along the track, 23 feet from it on the north side, measuring from center to center, extends a side track. Strung along the north side of the side track and beginning 74 feet east of the east side of the public road, are the following buildings upon the defendant’s right of way: First, a small coal shed, not so large or high as to obstruct a view from the highway of a locomotive headlight; second, at a distance of 208 feet eastward from the coal shed, the intervening space being open and unobstructed, and at about 300 feet from the highway, is a grain elevator, 48 feet in length, along the track; and third, eastward from the elevator, after an interval of 204 feet, or about 600 feet from the crossing, some low, fenced, open cattle pens, commonly known as stock yards. The northern boundary of the defendant’s right of way along this space is 150 feet from the main track, and along this northern boundary, adjacent to a public road or street, are standing at intervals some ordinary corn cribs. There was also, at the time below mentioned, a box. car standing on the side track immediately east of the crossing. There are ten or ¡aore' regular trains passing this point daily, but often not on schedule time, and there are occasional special or extra trains, so that the passage of a train, at any time, may reasonably be expected.
At 6:38 o’clock P. M., on the 10th day of October, 1900, one of the defendant’s passenger trains arrived from the
The plaintiff, aaílo is administrator of one of the deceased women, contends for four propositions: First, that the structures along the north side of the side track and the right of way Avere so built as Avrongfully or negligently to obscure the approach of trains from the east to persons traveling along the highway, but there is not shown to be
Finally, it is said there is a conflict in the evidence as to whether the approach of the engine was duly signaled. We are unable to discover it. All are agreed that a headlight, denoting a'“special,” was burning, and that a blast
We do not think that such testimony, though, in this case, no doubt truthful, can be dignified by the name of evidence. There are millions of people in this country who did not see the last partial eclipse of the sun, although it was visible from all parts of the United States, and the sky Avás clear over nearly the Avhole territory. People sit for hours in their oavu quiet homes without hearing the clock strike. FeAV of the dAvellers in the larger cities hear the alarms from the fire department stations, or the Avhistling of tugs in the harbors. But the clock strikes every hour or oftener; the alarms are sounded frequently, and the tugs blow their blasts almost constantly. There is no class of occurrences which people are less likely to notice or remember than those Avith Avhich, from frequent repetition, they are familiar, or those which, happening at stated intervals or in connection with other familiar happenings, are expected.
But it is unnecessary to pursue the subject further. This
It would be possible to presume that that which the plaintiff’s witnesses say, merely, that they did not hear, or did not take notice of, did not happen, and that the defendant’s witnesses, who testify positively to the clearest recollection of hearing it, and who, therefore, can not be mistaken, are perjured; but surely such a presumption would be supported only by the slightest, most uncertain and most suspicious of testimony. A verdict having so flimsy a foundation could not, under the authorities cited, be upheld. It is unnecessary to discuss the evidence of contributory negligence, Avhich is Avithout conflict and, as it seems to us, conclusive.
At the conclusion of the trial, the court submitted the case to the jury by a series of instructions, Avhich, from a cursory reading, appear to be objectionable only for the reason that they Avere unnecessary, and the jury returned a verdict for the defendant, upon which a judgment was entered, which the plaintiff seeks to reverse by this proceeding. The plaintiff asks a reversal for the sole reason that, as he contends, the instructions, or some of them, are erroneous, but, even if they be so, the verdict being the only one justifiable by the evidence, he has suffered no prejudice.
It is recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed,