This is аn action for damages growing out of a collision between two trucks belonging to the plaintiff and two refrigerator cars belonging to the Fruit Growers Express Company but which were in the possession of and being moved by the defendant. The jury returned a verdict for $1,457.18, upon which a judgment was entered. The defendant appeals.
The evidence shows that plaintiff’s truck consisting of a tractor and trailer came down Douglas Street in Omaha for the purpose of рicking up freight at the General Electric Building, located on the southwest corner of the intersection of Eighth and Douglas Streets. Two box cars belonging to defendant were standing directly east of the loading dock, which made it necessary for the truck to back in diagonally to get the freight. While the truck stood on defendant’s lead track on Eighth Street with its motor running and the driver and his helper contemplating the proper method of reaching the loading dock, twо other box cars farther south became disengaged from defendant’s switch engine and rolled into the standing box cars, pushing them into the trailer of the truck. Immediately prior to this collision a second truck belonging to the plaintiff came abreast of the first truck. The driver of the second truck, observing the impending collision, backed up in an attempt to afford room for the first truck to avoid the accident. It resulted in the first trailer being shoved into the second, cаusing damage to both. No damage was caused to either of plaintiff’s tractors.
Three railroad tracks occupy Eighth Street at the point where it crosses Douglas Street. The lead track, the main track with relation to thе other two, occupies the center of
It is also shown by the evidence that the apрroach to the Douglas Street river bridge crosses Eighth Street at the intersection where the accident occurred. Vehicular traffic enters Eighth Street from Douglas Street by a one-way traffic lane on the right-hand side of the bridgе approach. The one-way traffic lanes were marked as such by the traffic department of the city of Omaha. The area where the accident occurred was also officially designated as a “no parking” area.
The defendant contends that under this state of facts no negligence on the part of the defendant is shown and that plaintiff’s employees were guilty of negligence more than slight as a matter of law when compared with the negligence of the defendant, if any negligence on its part is established. Of course, if either of these contingencies be true, the defendant would be entitled to judgment at the direction of the court.
The defendant had no exclusive right to operate its engines and cars on Eighth Street. Pedestrian and vehicular use, particularly the latter, was heavy at this intersection. Each had a right to make a reasonable use of the street. A pedestriаn or a vehicle operator does not become a trespasser or a licensee so as to absolve the railroad company of its duty to exercise ordinary care to prevent injury to him or his proрerty while using the portion of the street
The evidence shows that the defect on the coupler was ascertainable on inspection of its parts, but to a trainman engaged in moving cars it was a defect which the employees сould not be expected to observe. The grade slopes in the direction in which the cars rolled. We think the evidence is ample to sustain a finding that thé defendant failed to exercise due care in the handling of the cars in question.
The applicable rule is stated in Miratsky v. Beseda,
But the defendant contends that negligence on its part must be proved and that there is no presumption of negligence to be inferred from the fact that the cars became disengaged from the switch engine. While it might be said
Defendant сomplains of the following instruction: “You are instructed that in this case the fact that the freight cars became detached from the defendant’s freight engine affords reasonable evidence of negligence on the part of said defendant, in the absence of an explanation by the defendant that it could not, by the exercise of ordinary care, have discovered the reason for said detachment in time to have prevented the аccident.” We think this instruction states the rule in a substantially correct manner under the evidence in this case and contains no error prejudicial to the defendant. Certainly, when considered with all the other evidence and cirсumstances in the case, and in the absence of any explanation by the defendant that it could not in the exercise of ordinary care have discovered the cause of the disengagement of the cars in time to hаve prevented the accident, the jury may properly infer negligence from the fact that the cars became disengaged.
The next contention advanced is that the plaintiff was guilty of contributory negligence in such a degree as to
Whether or not plaintiff’s truck driver was negligent in stopping on the track in question was clearly for the jury. It is not negligence to make a reasonable use of a public highway, and temporary stops do not ordinarily afford a basis for a charge of negligence. We think that Village of Wonewoc v. Taubert,
We have examined the instructions given by the court and those offered by the defendant and we find no error prejudicial to the defendant in the court’s action with reference thereto.
Affirmed.