The Omaha, Niobrara & Black Hills Railroad Company v. O'Donnell

• Decision Date: 01 July 1887
• Citation: 35 N.W. 235,22 Neb. 475
• Parties: THE OMAHA, NIOBRARA & BLACK HILLS RAILROAD COMPANY, PLAINTIFF IN ERROR, v. JAMES O'DONNELL, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

35 N.W. 235

22 Neb. 475

THE OMAHA, NIOBRARA & BLACK HILLS RAILROAD COMPANY, PLAINTIFF IN ERROR, v. JAMES O'DONNELL, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1887

ERROR to the district court for Platte county. Tried below before POST, J.

AFFIRMED.

A. J Poppleton, J. S. Shropshire, and W. R. Kelly, for plaintiff in error, cited: 1 Redfield Railways, 548. Shearman & Redfield Negligence, 578. Stevens v. R. R. Co., 18 N.Y. 422. Cont. Imp. Co. v. Stead, 95 U.S. 165 R. R. Co. v. Houston, Id., 697. Pence v. R. R Co., 19 N.W. 785. Chase v. R. R. Co., 5 Atlantic Rep., 771. Williams v. R. R. Co., 24 N.W. 422.

McAllister Brothers and Sampson & Millett, for defendant in error, cited: Railroad Company v. Stout, 17 Wall. 657. A. & N. R. R. Co. v. Bailey, 11 Neb. 332. City of Lincoln v. Gillilan, 18 Id., 115. Hutchinson v. R. R., 21 N.W. 212. Greany v. R. R. Co., 5 N. E. R., 425. Ernst v. R. R. Co., 35 N.Y. 9.

OPINION

REESE, J.

This action was instituted in the district court of Platte county, for damages sustained by plaintiff resulting from personal injury and the destruction of his team, harness, and wagon, at a railroad crossing at the town of St. Edwards, on the line of the railroad of plaintiff in error. The cause was tried to a jury, who returned a verdict in favor of defendant in error for $ 5,500. This verdict was set aside by the district court, and a new trial granted. On the second trial a verdict was returned in favor of defendant in error for $ 5,000. A motion for a new trial was filed, assigning two grounds therefor: First, "The verdict is not sustained by the evidence, and is contrary to law." Second, "For errors of law occurring at the trial, and duly excepted to by defendant."

This motion was overruled, and judgment rendered on the verdict. Plaintiff in error brings the cause into this court by proceedings in error. Defendant in error alleges error in the action of the district court in setting aside the first verdict, and asks that that order be set aside and judgment rendered thereon. It is conceded that the first verdict was set aside for the sole reason that the evidence was not sufficient to sustain it, and that the evidence upon that trial was substantially the same as on the last. We do not think it necessary to enter into a discussion of the testimony adduced upon the first trial, for the reason that the result of the second one was substantially the same, and for the further reason that it could not be said that there was an abuse of discretion in the action of the court. To this may be added the further reason that it is apparent that the last verdict was sufficiently large to cover the damage proven on either trial.

The sole question presented by this record is as to whether the verdict is sustained by the evidence.

The testimony upon the trial shows substantially the following uncontroverted facts: Plaintiff's railroad is constructed through the village of St. Edwards upon a straight line and a level surface. Defendant resides about one-half mile north of the village, and on the east side of the railroad track, the direction of which is from south-east to north-west, and perhaps about one half mile from the track. That part of the village in which the post-office, stores, etc., are situated, is on the west side of the track, or across the same from the residence of defendant in error. The crossing is at the section line on the north boundary of the village, and about one-half mile south-west from defendant's house. On the day on which the accident occurred, defendant in error was in the village with his team and wagon, and at about seven o'clock in the evening started to go home. The point from which he started was about four blocks north-west of the depot, and perhaps about the distance of one block from the track of plaintiff's road. His first direction was one and a half blocks west, thence four blocks north, which again brought him near the track, parallel with the track to the north-west along the right of way for about one hundred and eighty yards to the section line crossing, where, by a short turn to the right, he sought to cross the railroad track. As he was in the act of crossing the track, plaintiff's train, coming from the south-east, struck his team and wagon, killing both horses, breaking the wagon and harness, and injuring him. The regular time for the train was 5:30 o'clock. It was therefore about one and a half hours late. Of this fact defendant in error had knowledge, for he had seen the train standing at the depot, about three-quarters of a mile south-east from the place of the accident, some little time before he started home, but he testifies that he had been informed by what he considered reliable authority that the train had gone before he started. His informant, however, was in no way connected with the railroad. It was quite cold, and the wind was blowing strongly from the northwest. There was but the one train per day running each way, the return train going south in the morning.

In the examination of the question presented--the contributory negligence of defendant in error--it must not be forgotten that all questions of fact were for the jury to determine, and that where the testimony was conflicting it was for them to decide as to which of the witnesses were entitled to belief. In addition to the foregoing statement of facts, there was sufficient evidence to support the finding that the train was running at an unusually high rate of speed, and that no signals were given of its approach to the crossing. That when defend...