Chi., B. & Q. Ry. Co. v. Schwanenfeldt

Decision Date22 November 1905
Citation105 N.W. 1101,75 Neb. 80
CourtNebraska Supreme Court
PartiesCHICAGO, B. & Q. RY. CO. v. SCHWANENFELDT.
OPINION TEXT STARTS HERE
Syllabus by the Court.

In an action wherein the plaintiff seeks to recover damages on account of an injury alleged to have been sustained because of the negligent acts of the defendant, where it appears from the undisputed evidence that the plaintiff was guilty of the neglect of a clear legal duty and that his own negligence was the proximate cause of the injury, the question presented is one of law for the court, and not for a jury.

Commissioners' Opinion. Department No. 2. Error to District Court, Lancaster County; Cornish, Judge.

Action by Emil L. Schwanenfeldt by Emil V. Schwanenfeldt, his next friend, against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.J. W. Deweese and Frank E. Bishop, for plaintiff in error.

A. W. Field, for defendant in error.

JACKSON, C.

The plaintiff in the trial court recovered judgment against the defendant in an action for damages on account of a personal injury, which it was alleged he sustained because of the negligent acts of the defendant. At the close of the plaintiff's evidence the defendant moved for a directed verdict, the motion was denied, and the defendant offered no evidence. From the judgment the defendant prosecutes error, alleging insufficiency of the evidence to sustain the verdict and judgment.

The facts disclosed by the evidence are: That the defendant owned and used a railroad track along Eighth street in the city of Lincoln, a street extending from the south to the north along the east side of block 52. The track in question was a switch put in for the accommodation of wholesale houses, and was connected with the company's yards at the south end only, so that the only means of access to the track was from the south. At the point where the accident occurred the west rail of the railroad track was 17 feet east of the lot line. An alley 16 feet in width extends east and west through block 52, and is paved with stone. On the east side of the block, and immediately south of the alley, a lumber yard, inclosed with a high board fence, with an office building at the east end of the lot, obstructs the view, so that it would be impossible for a person passing through the alley from the west to the east to see a train approaching from the south, except at a point at or near the east end of the alley where it intersects Eighth street. Between the buildings on the east side of block 52 and the railroad track there is nothing to obstruct the view to the south, except some telegraph poles. The plaintiff was the driver of a butcher's delivery wagon, drawn by a single horse. The seat on the wagon was at the front flush with the end of the box, so that the driver occupying the seat would sit with his feet resting on the footboard extending out from the bottom of the box. The plaintiff was hauling meat from the supply house of a packing establishment, and in company with a companion, who occupied the seat on the wagon with him, drove through this alley from the west to the east onto the railroad track, where his wagon was struck by a freight car then being moved from the south to the north, and as a result he sustained injuries, on account of which the action was brought. The horse was gentle, and being driven by the plaintiff.

The plaintiff, as a witness in his own behalf, testified that he had driven over that route almost every day for several months. He knew the location of the railroad track; the location of the buildings; that it was his usual way to come back from the meathouse; that the horse was trotting up the alley, and continued to trot in the same way, until he (the plaintiff) saw the cars. As to when he saw the train, he testified as follows: Q. Tell the jury when you first saw the train? A. When I first saw it, it was right about two feet, I guess, from me. Q. You don't know what it was called your...

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