105 Neb. 243 | Neb. | 1920
Tbis is an action at law in wbicb plaintiff alleges that on May 3, 1916, she was a passenger in an automobile driven by Frederick Shieck on one of the public streets of Shelton, which street crosses the tracks of defendant company at the second crossing east’of defendant’s depot; that plaintiff was a guest together with her two little children occupying the back seat of the automobile; that the automobile approached the crossing of defendant railroad com
This collision caused an injury to plaintiff’s left knee and was a general shock to her nervous system, and there were also other internal injuries alleged to have been caused. The jury returned a verdict of $4,500 in plaintiff’s favor, and defendant appeals.
This in the main is a fair statement of the claims made by plaintiff and contains a fair statement of the facts and issues upon which the case was tried.
The first issue tendered in the trial of this case is: Was the defendant company negligent? An ansAver to this proposition is decisive of this case.
The modern invention and universal use of the automobile created a different situation in the matter of accidents
Th-ep, the question for decision here is: Was the defendant guilty, and did this accident originate by reason of its negligence? We answer, the switch engine and the cars had the right, as a matter of law, to be on this track where the accident occurred, for the purpose of placing some cars. The distance from the house track to the track in question was about 40 or 45 feet. It is true that the automobile driver coming from the house track had his view somewhat obstructed by freight cars, but before arriving at the track in question he and the occupants had a clear and unobstructed view to the west of where the automobile was being driven. The record shows that the automobile was moving at the rate of five or six miles an hour. Then the car was under absolute control. Pressure upon the foot brake would have stopped it almost instantly. The switch engine on the main track was coming to the east at six or eight or ten miles an hour. The sigpal was given to stop the engine or to slow down. The engineer saw and acted upon this signal, but was unable to stop before reaching the crossiug where the collision took place. That this signal and attempt to stop was acted upon by the engineer is testified to by two brakemen who were riding on the tender of the engine. The automobile continued to come on at the same rate of speed with which it ran over the house track, and in this way the engine and the automobile collided as the car came upon the main track, which was
I
It is conceded that the plaintiff submitted an array of witnesses to prove that the bell was not rung and the whistle not sounded as the train proceeded to the eastward from the west, but this class of evidence is negative and has but little probative force as compared to the positive testimony of several other witnesses that signals were given. For instance, Mrs. M. O. Tillotson, who resided near the track and the scene of the accident, saw this train as she was hanging out her clothes at the north side of the house, and the smoke from the train and dust stirred up by it was soiling the newly washed clothes, and her attention was particularly drawn to this train that caused the accident. She knew whether the whistle was blowing and the bell ringing, and her evidence is positive as to that fact. She testified that she heard a bell ringing, following which she heard a scraping noise and the scream of a woman. She'turned and saw the automobile just after the accident had occurred. Then there is another witness, who also resided near the scene of the accident, who had two .nephews boarding with her. She was especially interested in this train because these boys were freight haulers who took the goods as they were unloaded from the train, and as soon as they were unloaded the boys were to come to dinner. She had an especial reason to note whether the bell was rung or the whistle blown, because from these signals she could tell when the freight was unloaded and they would come to dinner, and in this way she could determine whether she would be able to go to the decoration day exercises held at the opera house.
Then there is the testimony of a traveling man, to wit, R. B. Cromwell, who was upon the step of a caboose of a train in sight of the accident and was in a position to know affirmatively whether signals were given or not. Prom his positive testimony it appears the bell was ringing and the whistle was blown as the engine and tender pro
A very late case from this court is materially helpful in arriving at a conclusion in the instant case. The first and fourth syllabus points in the case of Dodds v. Omaha & C. B. Street R. Co., 104 Neb. 692, are as follows:
“1. The rule that a verdict will not be disturbed when there is evidence tending to support it does not apply where the verdict is opposed to the undisputed physical facts of the case or is in flat contradiction of recognized physical laws, and where the testimony presented, taken as a whole, is capable of no reasonable inference of such a state of facts as 'would allow the plaintiff to recover.”
“4. When there is positive and substantial affirmative testimony by a number of witnesses that a gong was sounded, the fact that there is testimony by one or more witnesses that they did not hear the gong and that it did not ring does not authorize that question to be submitted to the jury, where it is shown that the attention of such witnesses*248 was diverted at the time the gong is said to have rung, and when their position, mental condition, and surroundings were not such as would raise a presumption that they would have heard it if. it had sounded. Before their negative testimony is entitled to weight, it must appear that they had such knowledge as would justify them in speaking affirmatively in denial of the fact.”
This case is in point in showing what the law is upon the reception of negative testimony by this court.
In view of all the evidence and especially the positive testimony of several witnesses of defendant that a warning was given and proper lookout kept, we are of the opinion that the evidence was insufficient to support a verdict in favor of plaintiff. The case is therefore reversed and remanded.
Reversed.