Allen v. Omaha & S. I. Ry. Co.

• Decision Date: 14 February 1927
• Docket Number: No. 24584.,24584.
• Citation: 115 Neb. 221,212 N.W. 428
• Court: Nebraska Supreme Court
• Parties: ALLEN v. OMAHA & S. I. RY. CO.

115 Neb. 221

212 N.W. 428

ALLEN

v.OMAHA & S. I. RY. CO.

No. 24584.

Supreme Court of Nebraska.

Feb. 14, 1927.

Syllabus by the Court.

“It is the duty of a traveler on a highway, when approaching a railroad crossing, to look and listen for the approach of trains. He must look, where, by looking, he could see, and listen, where, by listening, he could hear; and if he fails without reasonable excuse to exercise such precautions he is guilty of negligence.” Askey v. Chicago, B. & Q. R. Co., 101 Neb. 266, 162 N. W. 647;Haffke v. Missouri P. R. Corporation, 110 Neb. 125, 193 N. W. 257.

Under the facts disclosed by the record and set out in the opinion, held that the negligence of the plaintiff was more than slight, as compared with the negligence of the defendant, and precludes plaintiff from a recovery.

Where the facts show beyond reasonable dispute that the plaintiff's negligence was more than slight, as compared with the negligence of the defendant, it is the province of the court to direct a verdict for the defendant.

Appeal from District Court, Douglas County; Wakeley, Judge.

Action by John C. Allen against the Omaha & Southern Interurban Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.John Lee Webster and R. B. Hasselquist, both of Omaha, for appellant.

Stout, Rose, Wells & Martin, of Omaha, for appellee.

Heard before GOSS, C. J., and DEAN, GOOD, THOMPSON, and EBERLY, JJ.

GOSS, C. J.

This is an action to recover damages for personal injuries suffered by the plaintiff in a collision of his automobile with defendant's train at a crossing of the public highway and the railway tracks of the defendant.

At the conclusion of plaintiff's proofs, the defendant moved for a verdict in its favor, but did not press the motion; decision was reserved until the end of the trial, when the motion was renewed and overruled. The trial resulted in a verdict and judgment for plaintiff, and defendant appealed.

The collision occurred in the open, comparatively level, farming country within the corporate limits of Bellevue, but a considerable distance from the main collection of houses, commonly considered as that village, and on the line of the railway between Bellevue and Ft. Crook. Plaintiff, a farmer then about 40 years old, residing on a farm about two miles north of Bellevue, was returning from a business errand to a point about two miles south of Ft. Crook. He had gone over this route on his way; had been over it five or six times between March 1 and October 6, 1919, the date of the accident, and knew the conditions at the crossing. He knew there was no flagman and no mechanical signal. The street on which he was driving is the main highway between the village of Bellevue and Ft. Crook, and it runs east and west. The railway runs slightly southwest at that point. Plaintiff had picked up a guest, whom he did not know, and they were riding east, but were not conversing.

At the north side of Twenty-Fourth street and west of the tracks was a cornfield with corn 7 or 8 feet high, reaching within 30 or 35 feet of the west line of the track, and weeds, somewhat higher than the corn, were east of the cornfield up to within 12 or 15 feet of the track. There had been a mudhole in the street, the east end of which came about 30 feet from the west line of the car track. It had about dried up. The day was clear.

Plaintiff was driving a two year old Ford touring car, equipped with winter top, but with the windows open and his windshield clean. He testified that he had been driving about 12 to 15 miles an hour, but that, when he came to the location of the mudhole, he slowed down to 8 or 10 miles an hour, and then proceeded until the collision occurred; that heretofore he had always been afraid of this crossing and had always stopped to look; that on this occasion he looked only once for the train and that was when he was 20 or 30 feet west of the tracks, and from the point where he looked he could see 100 feet up the track; that, at the speed at which he was then moving, he could have stopped his car in 8 or 10 feet, but, after looking for the train, he started to go over the track, looking straight ahead toward the east; and that he did not see the train, nor hear the whistle. The testimony of his guest, who was riding with him, is substantially the same as that of plaintiff in respect of the conditions and failure to hear any signals or warning.

Defendant has a Nebraska charter as a commercial railway, and runs trains between South Omaha and Ft. Crook at frequent intervals. The train which collided with plaintiff's car consisted of passenger car in front and the rear car for baggage, freight and express. It was moving south. Twenty-Fourth street was a stopping...