86 Neb. 642 | Neb. | 1910
Lead Opinion
This is an action for personal injuries caused by the defendant’s alleged negligence. The plaintiff prevailed, and the defendant appeals.
1. The defendant introduced no evidence, but insists the testimony conclusively establishes plaintiff’s contributory negligence. The plaintiff was injured by one of the defendant’s locomotives at the intersection of its railway and Thirtieth street in a sparsely settled neighborhood in the outskirts of the city of Omaha. The street upon which the accident occurred is paved, runs north and south, and is frequently used by the public. The railway approaches the street on a curve from the southwest, and is about 18 indies above the surface of the street at said intersection. South of the track and west of the street earth has been taken from the defendant’s right of way to construct an embankment, so that the railway grade is elevated from six to ten feet above the bottom of the borrow-pi’ts, a short distance west of the street, and thence southwest several hundred feet. At the time the plaintiff was injured, August 14, 1905, there were weeds from six to nine feet in height in the borrow-pits, and smaller weeds upon the sides of the fill to within four feet of the railway, but this vegetation could in no manner obscure a pedestrian’s view of a train approaching from the southwest. There are trees within the defendant’s right of way west of the
The sixth instruction given by the court on its oAvn motion reflects the testimony concerning plaintiff’s conduct, and will adAdse the reader concerning the law of the case upon this phase of the suit: “You are instructed that the plaintiff lias alleged in her petition, and has given evidence tending to show, that on the morning of the accident in question, and just prior to its occurrence, she was walking north on the sideAvalk on the west side pf Thirtieth street, proceeding in the direction of the railway in question; that at a point on said sidewalk from 35 to 37 feet south of the center of defendant’s track on said crossing she looked and listened for approaching trains on defendant’s road, but neither saw nor heard any. You are likeAvise instructed that the undisputed evidence, as well as the admissions of counsel for both parties in open court, established conclusively the following facts: (a) That at the point last above stated where plaintiff claims, ¡she looked pud listened .for approaching trains, the rnnm being from 35 to 37 feet squth of the (•enter of defendant’s track, plaintiff! ]u4 t\ 4§av, nnot)
Section 10579 et seqAnn. St. 1909, command a railway company to give notice of the approach of its trains to public crossings, by sounding a AAdiistle or ringing a bell, commencing at least 80 rods from the highway and continuing the warning until the train shall have crossed the road or street. Failure to give this warning does not in itself establish the carrier’s negligence, but may be evidence tending to prove that fact. The proof in this case justified a finding that defendant was negligent in failing to give the highway warning, and that such negligence was the proximate cause of plaintiff’s injury.
The defendant argues that the plaintiff had a clear vieAv of the railway track many feet west of the crossing; that if she had looked Avestward at any time before stepping upon the track she Avould have seen the train, and is guilty of contributory negligence because she did not look at a time when her sense of sight would haAe been an effective means to warn her of her peril. Decisions in point to sustain the proposition have been cited, but they do not appeal to us as sound. The rule seems harsh, and practically compels-the individual to insure his OAvn safety. In Omaha, N. & B. H. R. Co. v. O’Donnell, 22 Neb. 475, Ave held that ordinarily the question of contributory negligence in cases like the one at bar is for the jury. In that case, if the injured traveler had looked subsequent to his first and second observations and Avhile yet in a place of
In Chicago, B. & Q. R. Co. v. Yost, 56 Neb. 439, the plaintiff, a section hand, had been injured by a locomotive following a gravel train; he stepped off the railway and down an embankment; before returning to work, and while at the foot of the grade, he looked in the direction from whence the passing train had come, but could not see the aproaching engine because of an intervening wing-fence; thereafter he did not look, although he had been warned by his superior to do so before stepping onto the track, and we held he was guilty off contributory negligence as a matter of law. The case is reported on a second appeal in 61 Neb. 530, and a statement in the first paragraph of the syllabus might, if considered apart from the facts disclosed in the opinion, lead an indifferent observer? astray. It must be remembered that Yost had violated a positive order of his employer made to secure the servant’s safety. It is competent for a railway company to make a rule of that nature to govern the conduct of its employees, but it has no such control over the public. The power to compel a pedestrian to take so extreme a precaution under all circumstances is vested in tire legislature, and it has not spoken upon this subject. The court did not hold nor intend to hold in the Yost case that all pedestrians, without regard to surrounding circumstances, must, just before stepping onto a railway, look for trains, or in default thereof be convicted of con
At the time the first appeal in the Yost case was determined, the opinion in Chicago, B. & Q. R. Co. v. Pollard, 53 Neb. 730, was on file, and no attempt was made to repudiate the principles of law announced in the Pollard case. The facts in that case are that Pollard was driving along the highway and over a railway crossing. His attention was challenged by a pillar of smoke to the east which he thought indicated the presence of a train. Turning from a consideration of the smoke just as his wagon was upon the crossing, he observed a train approaching from the opposite direction. It was held that the jury should say whether he was negligent or not. Mr. Chief Justice Harrison, speaking for the court, said: “It was not for the trial court, and is not for this court, to determine and say as a matter of hvw just at what exact point in the plaintiff’s approach to the railroad he should have looked in either direction on the track for a train, or just at what instant he should have looked in either direction for the same purpose. The question was,, did he, under his surroundings and all the circumstances, observe the care which ordinarily would have been taken by a prudent person?”
The plaintiff had crossed defendant’s railway at Thirtieth street several times before the accident. She testifies that she was accustomed when traveling from the south to stop about 35 feet from the track and look southwest for trains; that at times she had waited for trains to pass before attempting to cross, and in her judgment an observation made at said point would advise her of an approaching train so that she could protect herself; that on the day she was injured, after looking east and west at her usual point of observation, she heard no sounds to
2. Instruction numbered 4, requested by defendant, was properly refused. The first proposition of law therein stated will apply to some cases, but not the instant one,
Instruction numbered 8,' requested by defendant, was properly refused. It is not applicable to the evidence. Instruction numbered 11, requested by defendant, may be correct as an abstract principle of law, but in the light of the evidence adduced was unnecessary. The evidence does not tend to support the last clear chance doctrine, and the court’s instructions did not present any phase of that theory to the jury, hence it was proper to refuse the instruction last referred to. Instruction numbered 13, requested by defendant, purports to state the evidence in some particulars. It is not entirely accurate, is argumentative, and was properly refused. Instruction numbered 16, requested by defendant, states a rule of Iuav in conflict with that announced in Chicago, B. & Q. R. Co. v. Pollard, supra, and invades the province of the jury. The special findings do not control the general verdict. The situation in this case upon the point considered is very much like the one created in Kafka v. Union Stock Yards Co., 78 Neb. 140.
The judgment of the district court, therefore, is
Affirmed.
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion in this case, for the. reason that to my mind the undisputed facts show such gross contributory negligence on the part of the plaintiff as should prevent a recovery. The effect of this opinion is to overrule Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627; Guthrie v. Missouri P. R. do., 51 Neb. 746; Chicago, B. & Q. R. Co. v. Pollard, 53 Neb. 730; Brady v. Chicago, St. P., M. & O. R. Co., 59 Neb. 233, and many other cases. By our judgment we make a railroad company an absolute insurer of the safety of pedestrians at its grade crossings.
I am of opinion that we should hold, in this case, that the plaintiff’s conduct in not looking or listening for the approach of the defendant’s train for the distance of 35 feet while approaching the crossing where the accident occurred, and by deliberately stepping onto the railroad track in front of the oncoming train, and at the instant it reached the crossing where there was an unobstructed view of the track, in the direction from which the train approached, of from 400 to 500 feet, should be held to be contributory negligence, as a matter of law.
The judgment of the trial court should be reversed and the cause dismissed.