101 Neb. 479 | Neb. | 1917
This is a companion case to the personal injury action of Askey, Adm’r, v. Chicago, B. & Q. R. Co., ante, p. 266. This case and the Ashey case grew out of the same accident, but were tried to a jury separately. In the present case plaintiff recovered judgment for $5,000 for personal injuries he sustained. From this judgment an appeal has been prosecuted.
The facts that are discussed in the Ashey case that may be necessary to consider in arriving at an understanding of the present case need not be here repeated. At the time of the accident plaintiff’s party was riding in a Ford automobile owned and driven by Thomas Askey. He was seated beside the driver in the front seat on the right hand side, that, being the direction from which the train came
Mr. Morris says that the automobile was running at the rate of about 12 or. 15 miles an hour, and that when they approached the railroad crossing he looked along the track to the east, but that he could not see to the west, the direction from which the train came, on account of some trees that obstructed the view, and that when he first saw the train coming the car in which he and his party rode was about 20 or 30 feet from the railroad track, and immediately he started to jump out of the machine, and got as far as the running board or fender. Prom the rate of speed at which the automobile was traveling, as testified by plaintiff, it may be inferred from the testimony that, if plaintiff had been in a normal condition, he could have induced his companion either to slow down or stop the machine, or that he could have jumped from the car in any event in time to save himself. With respect to the time when plaintiff first saw the train he testified: “Q. What did Mr. Askey do, if anything, when you saw the train? A. He says, ‘My God, there is a train.’ Q. What did he do? A. Well, he started to — the last I seen of him he was stooped over.”
One of the main questions to be determined in the present case is whether plaintiff is chargeable with or shared the negligence and carelessness imputed to the administrator’s decedent in the Askey case. In this case, as in the Askey case, the testimony shows that considerable quantities of intoxicating liquor had been consumed by plain
That plaintiff’s carelessness and negligence in the premises contributed to his injury is fairly deducible from the record. Even though he was not driving the machine, it was his duty to look and listen where looking and listening would have been effective and where he knew there was danger. In a case of like import it was said by Kirkpatrick, 0., in Hajsek v. Chicago, B. & Q. R. Co., 5 Neb. (Unof.) 67: “The opportunities for observation of plaintiff were equal, if not superior, to those of her husband, who was driving the team.” In the present case plaintiff was not charged with the responsibility of driving the automobile. His opportunity to be on the lookout for impending danger at a place he must have known to be dangerous was therefore perhaps better than that of the driver. Knowing the vicinity and the railroad crossing as he says he did, it was plainly his duty to use every reasonable effort to induce the driver of the automobile to slow down or to stop the machine if the view of the track was obstructed. It is not shown in the record before us that he cautioned the driver about impending danger before they reached the track where the collision occurred, nor that he made any attempt to induce his companion to slacken the speed of .the car or to stop.
Plaintiff cites Craig v. Chicago, St. P., M. & O. R. Co., 97 Neb. 426, but it does not appear to support his contention. In that case it is shown, in an opinion by Letton, J., that plaintiff’s decedent' attempted to seize the arm or the reins of the driver, seemingly in the endeavor to prevent the team from crossing the track in front of the locomotive.
In Brommer v. Pennsylvania R. Co., 179 Fed. 577, the court gives this rule: “One riding in an automobile by invitation of the owner and driver, with whom he sat on the
Rebillard v. Minneapolis, St. P. & S. S. M. R. Co., 216 Fed. 503, is a late case, wherein the court say: “The rule that the negligence of the driver of a conveyance will not be imputed to a passenger, whether the conveyance is a public one or the passenger is the guest of the driver of a vehicle, does not apply where the passenger has full knowledge of the danger and voluntarily incurs the risk.”
Omaha & R. V. R. Co., v. Talbot, 48 Neb. 627; Bush v. Union P. R. Co., 62 Kan. 709; Willfong v. Omaha & St. L. R. Co., 116 Ia. 518; Dean v. Pennsylvania R. Co., 129 Pa. St. 511; Warth v. Jackson County Court, 71 W. Va. 184; Brickell v. New York C. R. Co., 120 N. Y. 290. The foregoing cases substantially support the rule that is adhered to in this opinion.
In view of the record, we find that the verdict of the jury is not supported by the evidence, and the judgment of the trial court is therefore reversed and the cause remanded.
Reversed.