Blid v. Chicago & Northwestern Railway Company

• Decision Date: 26 June 1911
• Docket Number: 16,505
• Citation: 131 N.W. 1027,89 Neb. 689
• Parties: GUSTAF A. BLID, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

131 N.W. 1027

89 Neb. 689

GUSTAF A. BLID, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT

No. 16,505

Supreme Court of Nebraska

June 26, 1911

APPEAL from the district court for Dawes county: JAMES J HARRINGTON, JUDGE. Reversed.

REVERSED.

B. T White, C. C. Wright and B. H. Dunham for appellant.

J. E Porter, contra.

OPINION

ROOT, J.

This is an action to recover damages for the death of live stock caused, as alleged, by the defendant's failure to maintain lawful cattle-guards at a highway crossing. The plaintiff prevailed, and the defendant appeals.

The sole question for our determination is whether the evidence sustains the verdict.

At the point where the cattle were killed, the course of the highway is north and south and that of the railway is approximately east and west. The cattle were killed by an east-bound stock train about 11 o'clock A. M., November 15, 1907. The evidence adduced by the plaintiff to sustain his allegation that his cattle went upon the defendant's right of way because of insufficient cattle-guards may fairly be summarized as follows:

Early in the forenoon the cattle were confined in a pasture from whence they subsequently escaped into the highway. The defendant's fences were in good repair, but the cattle-guards were insufficient to turn live stock. In the afternoon the plaintiff, in company with a Mr. Canfield, went to the scene of the accident, found the carcass of the bull about 60 feet east of the crossing at the bottom of the six-foot fill upon which the railway is laid, and found the carcass of the cow several feet further eastward at the bottom of and on the other side of the grade; 150 feet further eastward a crippled calf was found. For six to ten feet westward from the points where the carcasses lay, the witness found evidence that the bodies of the animals had been pushed or had slipped over the rails and the ties.

The defendant produced the fireman and the engineer in charge of the train, and they testify positively that, as the locomotive emerged from a cut at the end of a curve, the cow the bull and the calf were standing in the highway on the planks between the rails; that the stock alarm was sounded, and, so soon as it was evident that the cattle did not intend to move, the air brakes were applied, so that the speed of the train was decreased to 15 or 18 miles an hour as it passed over the crossing, but that it was impossible to stop the train and avoid a collision with the cattle, which occurred either right at the traveled way or between it and the cattle-guards; that the bodies of the cattle were carried on the pilot over the cattle-guard and beyond for a space until they rolled or fell off of the engine. The engineer testified that in his experience bodies of cattle have been thus carried for 100 yards before they would become disentangled and fall from the pilot. Two other witnesses testified that there were no cattle tracks on the railway grade east, but that there were such tracks on the highway between the rails west, of the cattle-guards; that hair was found upon the cattle-guards and occasionally from thence eastward to the point where the carcasses were found, but no...