66 Neb. 566 | Neb. | 1902
On the 6th day of October, 1899, John E. Reu, now deceased, Avas moving a steam engine and threshing machine over a public road of Otoe county. A separator was attached to the traction engine by what is known as a “sawed-off tongue,” about six or seven feet long. Upon the engine was the deceased, and another party, Avho assisted him in running it, and a third man was upon the separator. The whole outfit was moved by this traction engine. On the said road or highway, was a bridge sixteen or eighteen feet in length, spanning a ravine or dry run. Reu attempted to cross this bridge with the outfit above described. A portion of the bridge gave way and Reu was precipitated to the bottom of the ravine, and received injuries from which he died in a few days thereafter. The bridge broke down as the front wheels of the separator were coming onto it, and just before the engine passed off from it. The plaintiff herein was appointed administrator of Ren’s estate, and brought a suit against the county for damages, alleging that the bridge, by the wrongful act, neglect and fault of the county, became and was weak, insufficient and out of repair, and dangerous for the public to cross and travel upon; that said bridge gave way and broke down by reason of the wrongful act of the county to properly construct, maintain and repair the same. The defendant answered, in substance, that the bridge was in good repair, and had always been safe for ordinary loads,
1. Plaintiff contends that the verdict is not sustained by the evidence, and is contrary to law. It appears from the bill of exceptions that the bridge in question was constructed-less than five years before the accident- occurred. The manner of its construction Avas detailed, and the person Avho built it gave evidence as to the material used therein. It appears from his evidence that it Avas sixteen or eighteen feet in length, and was composed of nine white oak stringers, upon which the floor was laid. Eight of these stringers were 2x12 white oak plank; and the other one, being the middle stringer, was 3x12, and of the same material. The planking or floor of the'bridge, was also composed of oak, and was held in place by pine binders at the ends, which was the only pine used in its construction. The stringers rested upon timbers supported by red cedar and white oak piles. It thus appears that the bridge was properly constructed out of good material, and there is no evidence to the contrary. There was some dispute as to the condition of the stringers at the time the accident occurred. One or two witnesses, who made a very hasty and
2. It is contended that the court erred in giving instruction Bo. 12, which is as follows: “The court instructs the jury that in maintaining a bridge for public use, the county is not limited in its duty by the ordinary business use of the structure, nor is it bound to provide for the support of extraordinary or unreasonably heavy loads, but it is only required to provide what may be fairly anticipated for the proper accommodation of the public at large in the various occupations which, from timé to time, may be pursued in the locality where the bridge is situated. Whether or not the load which the deceased, John E‘. Beu, drove on the bridge in question was an extraordinary or unreasonably heavy load, is a question for you to determine from the evidence before you.” The contention is that it was error for the court to leave the question as to whether or not the load was unreasonable or an extraordinary one to the jury, because it is claimed the bridge should have been built in anticipation of just such a load.
The instruction in question seéms to have been taken from the case of Anderson v. City of St. Cloud, 81 N. W. Rep. [Minn.], 746. The rule laid down in that case is as follows: “In maintaining a bridge for public use,
In the case of Yordy v. Marshall County, 45 N. W. Rep. [Ia.], 1042, a case similar to the one at bar, the court held that “in an action against a county for an injury to plaintiff’s team and threshing outfit, caused by the breaking of a bridge while attempting to drive across, it is for the jury to determine whether the use which plaintiff was making of the bridge was unusual and extraordinary, and such as the county was not bound to anticipate; and it is error for the court to decide this question, and to direct a verdict in the county’s favor.” This being’the rule, it follows that an instruction taking that question from the jury by stating, as a matter of law, that the load was not an unusual or extraordinary one, would' have been erroneous. This was one of the questions which the court was bound to submit to the jury, and the instruction in question under which it was submitted, states the law as laid down by a majority of the cases, and is supported by the greatest number and the best considered decisions.
3. It is contended that the court erred in refusing to give instruction No. 9. By this instruction the jury were told that it was not negligence on the part of the plaintiff’s intestate to attempt to cross the bridge with the engine and separator in question. This instruction would have withdrawn from the jury the question as to whether or not the engine and separator was such an extraordinary load that under the circumstances the deceased should have exercised some precaution in attempting to cross the bridge in question with it.' It is in direct conflict with the instruction given upon that point,-and was properly refused.
4. It is contended that the court erred in giving instruction No. 6, which is as follows:
*572 “If you find from tlie evidence that the bridge in question was in an unsafe condition, and if you further find that the deceased, John E. Neu, knew of such unsafe condition, or had reason to know that the stringers on said bridge were cracked or broken by a previous strain, then you are instructed that the deceased would be negligent in not examining said bridge before he drove upon it.”
The objection urged to this instruction is that the court stated to the jury a circumstance, or a group of circumstances, as to which there had been evidence on the trial, and instructed that such fact or group of facts amounted to negligence per se. It is true that this court has held that “at most, the jury should duly be instructed that such circumstances, if established by a preponderance of the evidence, are properly to be considered in determining the existence of negligence.” This doctrine was first announced in the case of Missouri P. R. Co. v. Baier, 37 Nebr., 235, and has been followed and approved in a long line of cases decided since tliat time; and there can be no question now as to the correctness of this rule. If the instruction in question falls within this rule then the court erred in giving it; but if, on the other hand, the fact or group of facts mentioned therein, if true, would constitute negligence per se, then the instruction was properly given. It has often been held by this court that one about to cross a railroad track must look and listen to ascertain whether a train is approaching or not, and if, failing to do so, he is injured, such conduct is contributory negligence, — in other words, negligence per se, — and he can not recover. Omaha & R. V. R. Co. v. Talbot, 48 Nebr., 627; Guthrie v. Missouri P. R. Co., 51 Nebr., 746; Brady v. Chicago, St. P., M. & O. R. Co., 59 Nebr., 233; Chicago, B. & Q. R. Co. v. Pollard, 53 Nebr., 730. If the deceased, in passing over the bridge in question with his outfit the,last time before the accident occurred, heard the stringers crack, as some evidence contained in the record would seem to indicate, and therefore knew the bridge had become strained or weakened, a reasonable regard for his own safety required him to examine
5. Lastly, it is contended that the court erred in receiving the evidence of M. W. Balfour and L. Balfour as to the statements or declarations of the deceased in relation to the condition of the bridge, and what he discovered or heard when passing over it with his threshing outfit the last time before the accident occurred. This action was brought under the provisions of chapter 21 of the Compiled Statutes,
It appears from an examination of the record that the cause was fairly tried, and was submitted to the jury under proper instructions; that the evidence is sufficient to sustain the verdict; and we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
AFFIRMED.
Section 519S, Cobbey’s Annotated Statutes.