48 Neb. 627 | Neb. | 1896
About 11 o’clock in the forenoon of the 20th of May, 1892, William Patten and James B. Talbot were riding in an uncovered spring wagon, drawn by two ponies, on a public highway in Boone county Avhich crossed at grade the track of the Omaha & Republican Yalley Railway Company, hereinafter called the “Yalley Company.” Patten handled the lines, or did the driving. At the time the wagon was passing over the railway tracks it was struck by a locomotive engine of the Yalley Company pulling a passenger train bound northwest, and Talbot was injured. He brought this suit in the district' court of Boone county against the Yalley Company to recover damages for the injuries received as aforesaid. He had a verdict and judgment, to reverse which the Yalley Company prosecutes to this court a petition in error.
1. We can better understand the locality where the accident occurred, and the facts and circumstances surrounding the same, by consulting the following diagram, roughly prepared from data in the evidence:
Tbe figure, A, B, O, D, represents section 26, in township 20 north, and range 6, in Boone county. E, F is a line drawn north and south through the center oí said section. G, H is a public highway running east and west through the center of said section. R represents the center of said section. The line M, V represents the track of the Fremont, Elkhorn & Missouri Valley Railroad Company, hereinafter called the “Elkhorn Company,” as located across said section. The line O, V represents the track of the Valley Company, the plaintiff in error, as located across said section. K and L are the points where the highway, G, H, crosses the two railroad tracks aforesaid. The crossing K is about one thousand feet west of R, the center of the section. The crossings K and L are about one hundred and twenty-five feet apart. The crossing at K is about five feet higher than
Q. Tell the jury what use you made of your senses, if any, in approaching these two railroad tracks.
A.. That is a question that it is impossible for me to answer. I suppose I used my senses as usual.
Q. Just state the facts — what you did.
A. I cannot state what I did, because I was—
Q. I want him to state why he cannot tell.
A. I remember everything distinctly until I came down near to the mill. I recollect everything that occurred that day; but from there my mind is blank. I cannot recollect it. It is a mystery to me. I have asked the physician why it is.
Q. Do you remember of seeing the train?
A. I do not. I have no remembrance of seeing the train at all.
Q. Do you remember the engine or anything?
A. No, sir.
Q. Was there anything to prevent you seeing an engine?
A. I would not say that there was or that there was not.
Patten testified as follows:
Q. Now, before crossing the Elkhorn track, you may state what, if anything, you did to ascertain whether there was any train approaching.
Q. Now you may state whether you saw that train on the defendant’s railroad that came up that day to Albion. Did you see it, — that is, the train going northwest?
A. I saw it when it hit me — hit us.
Q. About how far from the defendant’s railroad track were you when you first got sight of the train, as near as you can tell? How far the horses’ heads were from the train, as near as you can tell?
A. Well, they were not very far.
Q. How far south of the crossing were they when they first whistled?
A. I cannot say.
Q. Tell us about how far.
A. I should judge they were about 100 feet; something like that.
Q. After passing that row of trees [R, E] and looking towards the south, I will ask you if you cannot see clear down to where the Valley railroad track comes out of the grove — all the way, so as to see an engine and train coming from that direction?
A. Well, I expect you can.
Q. Well, don’t you know that you can?
A. Yes, I guess we can see through there.
Q. Your best recollection is that you were in the neighborhood of that row of trees when you commenced looking?
A. I might have been by it and I might have been west of it. I did not take particular notice of that row of trees.
Q. You looked up and down the road both ways?
A. Yes, sir.
Q. Saw nothing; then you drove right on towards the railroad track, did you?
A. Yes, sir.
A. Yes, sir.
Q. From that point looking' east [southeast] I will ask you if you cannot see clear through the grove along the line of the Valley railroad track?
A. Yes, sir; you can from the Elkhorn track.
Q. As you went on that day, as you drove onto that gráde of the Elkhorn track, I will ask you if you had looked to the east [southeast] if you could not have seen that train if it was anywhere within a mile of you?
A. Why, I did not look to the east [southeast].
Q. You know that country pretty well? Answer the question.
A. Oh, I might have seen it if I had looked from the Elkhorn track, but I was looking for a train coming from the other way.
Q. You did not look to the east at all, did you?
A. Not when I was on the Elkhorn track; I did not. I was looking the other way and was minding my horses, because I thought I was perfectly safe.
Q. You did not look to the east at all, did you, after you got onto the Elkhorn track?
A. No, sir.
Q. You had not looked to the east for a considerable distance before you drove up onto the Elkhom track, had you? '
A. Well, I do not know how far.
Q. Well, was it a quarter of a mile away that you had looked to the east?
A. No, sir; I do not think it was.
Q. Was it an eighth of a mile?
A. Well, it may have been, probably.
Q. Well, what is your best recollection?
A. About that, I should judge.
Q. Now then, you think it was about an eighth of a mile from the track where you looked to the east, do you?
Q. And not afterwards?
A. Not after that?
Q. Yes, not after that.
A. No, sir, I do not think I did, because I was looking the other way.
Q. When you were on.the Elkhorn track, if you had looked east [southeast] from that point you could see the train coming from the east very easily, couldn’t you?
A. Yes, sir.
Q. If you had looked from that point and ^aw the train coming you could have stopped the team all right, couldn’t you?
A. Yes, sir.
Q. Your team was under perfect control at the time you came to the Elkhorn track?
A. Yes, sir.
Q. And after you had gone half way between the Elk-horn track and the Yalley Company’s track they were still under control?
A. Yes, sir.
Q. They were still under control when you were half way between the two tracks?
A. Yes, sir.
Q. And you looked towards the west to see if there was a train coming from that direction?
A. Yes, sir.
Q. And at that time, if there' had been a train coming from the west [northwest] you could have stopped them safely?
A. Yes, sir.
Q. And if you had seen one coming from the east [southeast], you could have stopped them, couldn’t you?
A. Yes, sir.
Q. Then at any time until you came upon the Yalley track you could have stopped those horses in time to have avoided the injury, couldn’t you?
A. Yes, sir, if I had seen the train.
It is the duty of a traveler upon a public highway,, "when approaching a railroad crossing, to exercise ordinary care. All men must take notice of the fact that a railway crossing is a place of danger. And we are of opinion that a person who goes upon a railway crossing without first listening and looking for the approach of a train, in the absence of a reasonable excuse therefor, does not exercise ordinary care. We further think that the act of a party in going upon a railroad crossing without first listening and looking for the approach of a train, in the absence of a reasonable excuse therefor, admits of no other inference than that of negligence, and if such failure to look and listen contributes to the party’s injury he cannot recover. Pennsylvania Co. v. Rathgeb, 32 O. St., 66, is a case very much like the one at bar. In that case Eathgeb was injured while attempting to cross the railroad track in a wagon. Before going upon the ’track he looked in one direction only. The district court charged the jury: “I will not say to you that the plaintiff should have looked east along the track. I will only say that he was obliged to use his sense of sight in a reasonable manner, and it is for you to say whether he ought to have
It was also charged as negligence that no whistle was sounded and no bell was rung by the Yalley Company’s servants as its engine and train approached the crossing where Talbot was injured. It is required by section 104, chapter 16, Compiled Statutes of 1895, that every locomotive engine running in this state shall be furnished with a bell or a steam whistle; that this bell shall be rung or whistle sounded at least eighty rods from the place where the railroad shall cross a highway; and that such ringing or whistling shall be continued until the engine shall have crossed the highway; and that if any railway company shall omit to give these signals, it shall be liable for all damages which any person shall suffer by reason of such default. But the failure of a railroad company to ring a bell or sound a whistle when approaching a crossing is simply evidence which tends to prove negligence on the part of the railroad company. It does not neces
Reversed and remanded.