43 Neb. 720 | Neb. | 1895
O street extends east and west through the city of Lincoln. The Chicago, Burlington & Quincy Railroad Com
1. One of the errors assigned is that the verdict is contrary to the evidence. The theory of the administrator was and is that about 8 o’clock in the evening of said day Pasby was proceeding towards his home, walking west on the sidewalk on the north side of O street, when he was struck by a freight train backing south on the freight
(a.) That at the time Pasby was struck by the freight, car on the freight track there was a train of cars standing on the scale track, which train obstructed the light of the reflector and left the sidewalk where Pasby was in complete darkness. If the jury had made a special finding that the Railroad Company on the evening of October 10, 1890,, at any timé between the hours of 7 and 9 o’clock of said, evening had by a train of ears on the scale track shut off the light of the reflector from O street east of said scale track, it is very doubtful if the evidence in this record, would support such special finding, and as the finding of the jury is in effect that the Railroad Company did not obstruct such light by a train on said scale track at said time we certainly cannot say that such finding is wrong under the evidence. If it be conceded that there was some evidence which tended to show that the Railroad Company,, on the date and between the hours aforesaid, by cars on the scale track shut off the light from the reflector which would otherwise have lighted O street east of the scale track, still there is no evidence in the record which shows or tends to-show that Pasby’s death resulted from, or was contributed to by, such action of the Railroad Company in obstructing said light; and beyond all question we cannot say that the jury drew the wrong inference from the testimony before them on the subject. Whether the Railroad Company shut off the light at the time and in the manner contended by the administrator was for the jury, and if the jury found that the light was not shut off as claimed by the administrator, we cannot say the finding was wrong. If the jury was of opinion that the light was during a portion of the time specified shut off by the Railroad Company, then we cannot say that the jury was wrong in inferring or finding that the shutting off of said light did not contribute-, to the death of Pasby. ■
(d.) That the freight car under which Pasby was found dead was backed south on the freight track across O street without any warning being given by the watchman or signal by the gongs of its approach to the crossing, and without any lookout being on the car. No one testified on the trial of this case to having seen Pasby after he purchased the bottle of whiskey in the saloon until he was found dead under the car. In other words, there is no direct evidence whatever in the record that Pasby was walking or standing on the sidewalk on the north side of 0 street at the time he was struck by the car which killed him. Two witnesses testified that they were standing between the scale and the freight track on the north sidewalk on O street, or just off that walk, at the time the car, under which Pasby was found dead, was backed south across the north sidewalk of O street; that they had lanterns in their hands, and that they neither saw nor heard anything of Pasby or any other person on the freight track immediately east of them, or on the sidewalk which the tracks crossed; that the street, tracks and sidewalk in the vicinity of where they were standing were lighted up by the reflector referred to above, and by the lanterns carried by the witnesses; that there were two railroad employes standing on the south em;l °f the car, under which Pasby was found dead, at the time it approached the north sidewalk of O street; that these employes had lanterns in their hands, and as the car approached the sidewalk crossing the men on top of the car saw the witnesses and spoke to them. The two men identified as standing on the south end of the car testified on the trial to being on the south end of the car at the time
2. The first, second, third and fourth assignments of error in the petition in error relate to the giving of certain insti’uctions by the trial court on its own motion. The alleged errors in giving these instructions are separately and specifically assigned in the petition in error; but in the motion for a new trial the assignment is that the court erred in giving all these instructions from the first to the seventh inclusive. As some of the instructions given were correct the assignment must be overi'uled. (Omaha Street R. Co. v. Cameron, 43 Neb., 297; Omaha Fire Ins. Co. v. Dierks, 43 Neb., 473.)
3. The fifth assignment of error is that the court erred in refusing to give instruction number one asked by the administrator. That instruction is as follows: “ First— There is some evidence that Edward Pasby met his death while walking on the sidewalk, where he had a right to be, and if you find that to be true, that is sufficient for the plaintiff’s case. Therefore it is necessary for the defendant to free it from liability to account for his being there, and if there is no proof of it, and it is all a matter of conjecture, it follows that the deceased is presumed to have placed himself where he was killed without any. want of ordinary care, and the defendant is liable for his death.” As already stated, there is no direct evidence in this record that Mr. Pasby met his death while walking on the sidewalk. This is one reason why the court did not err in refusing to give the instruction; but there is a more serious
4. The sixth assignment of error is that the court erred in refusing to give the following instruction: “Where a person is in the proper exercise of a right, and is injured by the action of another, the presumption arises that the party causing the injury was guilty of negligence.” What has already been said disposes of this assignment.
5. The seventh, eighth, ninth, and tenth assignments relate to the refusal of the court to give certain other instructions requested by the administrator. The alleged errors are specifically assigned in the petition in error, but in the motion for a new trial the assignment is that the court erred in refusing to give the instructions from the third to the eighth, both inclusive. The court did not err in refusing to give the fourth instruction of those under consideration for the reason that by it the court was requested to tell the jury that if the employes of the Railroad Company omitted
Affirmed.