Burlington & M.R.R. Co. v. Went

• Decision Date: 12 November 1881
• Citation: 10 N.W. 456,12 Neb. 76
• Parties: THE B. & M. R. R. CO. IN NEBRASKA, PLAINTIFF IN ERROR, v. FERDINAND WENDT, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

10 N.W. 456

12 Neb. 76

THE B. & M. R. R. CO. IN NEBRASKA, PLAINTIFF IN ERROR, v. FERDINAND WENDT, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 12, 1881

ERROR to the district court for Douglas county. Tried below, before SAVAGE, J. The action was to recover the value of a cow owned by Wendt, and killed by cars of the railroad in Omaha.

REVERSED AND REMANDED.

G. W Ambrose, for plaintiff in error, cited Saint Louis R. R v. Linder, 39 Ill. 433. Railroad v. Parker, 29 Ind. 471. C. & M. R. R. v. Patchin, 16 Ill. 198 R. R. Co. v. Phelps, 29 Ill. 447. Vandergrift v. Rediker, 2 Zab., (N. J.) 185. C. & N. W. R. R. v. Goss, 17 Wis. 428. Stucks v. M. & R. R., 9 Wis. 213. Clark v. S. & U. R. R., 11 Barb., 112. Marsh v. N. Y. & E. R. R., 14 Barb., 364. Munger v. R. R. Co., 4 N.Y. 349. Williams v. M. C. R. R., 2 Mich. 259.

H. Stull, for defendant in error, cited Bellefontaine & Indiana R. R. v. Snyder, 18 Ohio St. 399. Cincinnati & Zanesville R. R. v. Smith, 22 Ohio St. 237. Hoyt v. City of Hudson, 41 Wis. 105.

LAKE, J. MAXWELL, CH. J., dissenting.

OPINION

LAKE, J.

By the judge's charge the jury were explicitly and very properly told that "the mere killing of the cow" was "no evidence of negligence." The fact that the cow had been killed by a moving engine of the company, at the time and place charged, being admitted by the answer, the only material testimony given upon the trial on this point was as to the speed of the train at the time of the accident. This, according to the complainant's witnesses, was somewhere between twelve and eighteen miles an hour, while those of the company placed it at not to exceed eight.

That this conflicting testimony as to the velocity of the engine when it struck the cow was, in the mind of the judge, the pivotal point on which the decision of the jury must turn is apparent, for in referring to it, he said: "The running of a train past, or through the streets of a city, at a speed of eighteen miles an hour would be gross negligence. The running of a train at eight miles per hour, or at such other moderate speed as is necessary and customary, in order to carry on and do the business of the defendant company, was not such gross negligence. The question is then mostly confined to the point of the speed at which the train was running at the time of the accident."

The cow was killed within the corporate bounds of the City of Omaha, between Pine and Chestnut streets, "about two blocks" from the residence of the defendant in error, and a short distance from "Boyd's packing house." Aside from the business being done by the railroad company, this was all that was disclosed on the trial as to the character of that particular locality to distinguish it as an inhabited or business part of the city. Such being the case, there was no ground even for the jury to have found, as matter of fact, that a speed of eighteen miles an hour, the highest rate testified to, was at all unusually dangerous, much less for the court to charge, as a matter of law, that it was "gross negligence."

In this sort of action, whether the injury be done within or without a city, doubtless the rate of speed may be of great importance in determining whether there was in fact negligence on the part of those in charge of the train, and responsible for its movements; but speed alone, unconnected with any other fact or circumstance, and more especially where it is not shown to have been unusual, has never, that we are aware of, been held sufficient to show gross negligence. Besides, it must be apparent upon the slightest reflection that no arbitrary rule as to the rate of speed at which a train of cars may not be run, with due regard for the safety of persons and property, can be applicable to all portions of a town or city alike. Evidently a rate which in one portion, or under certain circumstances might be entirely reasonable, in another and more thickly inhabited portion, or under different circumstances, would very justly be deemed unwarrantable, and evince a most reckless disregard for the rights, both of persons and property.

As showing that speed alone, even although it be at an unlawful rate, is not sufficient to fix a liability for an injury, the case of Brown, Admr. v. The Buffalo and State Line R. R. Co., 22 N.Y. 191, is in point. That was an action for damages caused by the killing of the plaintiff's intestate at a street crossing in the city of Buffalo. It appeared that there was an ordinance prohibiting the running of trains within the city faster than a certain rate, with a fixed penalty for exceeding it. On the occasion of the injury complained of, the speed of the train was greater than the ordinance permitted, and the court charged the jury that this fact alone constituted negligence on the part of the railroad company, for which it was liable, if the intestate were himself without fault. This instruction the court of appeals held to be erroneous, and ordered a new trial. See also on this point C. O. R. R. Co. v. Lawrence, 13 Ohio St. 66.

Another instruction given at the request of the defendant in error, we consider erroneous, in view of the conceded facts of the case. It is as follows: "If the jury shall find that the killing was done by the defendant's employees at the time charged in the petition and through the negligence of the defendant's employees, then the plaintiff must recover, unless the jury also find that the plaintiff was guilty of contributory negligence."

The judge of his own motion had already told the jury that if "the plaintiff permitted his cow to stray upon the railroad track in question" and while so straying received the injury, "then the plaintiff was guilty of contributory negligence, which would preclude his recovery, unless the defendants were guilty of gross negligence, which caused the injury." And in this connection gross negligence was defined to be "the want of ordinary care." The fault to be found with this charge is, first, that it submitted to the jury the question of gross negligence on the part of the railroad company, of which there was, as we have seen, no evidence whatever; and, secondly, the question of contributory negligence on the part of the owner of the cow, of which there was no doubt, he having himself testified to the very state of facts which the judge said would amount to contributory negligence, viz: permitting his cow to stray upon the railroad track, which she did on the occasion of the injury.

Turning to the testimony of the defendant in error, on this point, we find...