Carter v. Chicago, B. & Q. R. R. Co.

• Decision Date: 13 May 1960
• Docket Number: No. 34581,34581
• Citation: 170 Neb. 438,103 N.W.2d 152
• Parties: Nettie CARTER, Guardian of Troy V. Carter, Incompetent, Appellant, v. CHICAGO, BURLINGTON & QUINCY R. R. CO., a corporation, Roy Vermaas and Earl Vermaas, individually and d/b/a Vermaas Service Station, et al., Appellees.
• Court: Nebraska Supreme Court

Page 152

103 N.W.2d 152

170 Neb. 438

Nettie CARTER, Guardian of Troy V. Carter, Incompetent, Appellant, v. CHICAGO, BURLINGTON & QUINCY R. R. CO., a corporation, Roy Vermaas and Earl Vermaas, individually and d/b/a Vermaas Service Station, et al., Appellees.

No. 34581.

Supreme Court of Nebraska.

May 13, 1960.

Syllabus by the Court

1. A violation of a city ordinance regulating the speed of railroad trains is not negligence per se, but evidence of negligence which may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.

2. An instruction which informs the jury that it is not at liberty to find a railroad company negligent on account of the speed alone of a train approaching a crossing, but that the jury is at liberty to consider the speed at which the train was proceeding at the time of the accident with all the other evidence in the case in determining whether or not the railroad company was negligent, does not constitute prejudicial error.

3. A guest by the terms of section 39-740, R.R.S.1943, is a person who accepts a ride in a motor vehicle without compensation therefor.

4. A person riding in a motor vehicle is a guest if his carriage confers only a benefit upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations, companionship, or the like, as a mere gratuity. However, if his carriage contributes such tangible and substantial benefits as to promote the mutual benefits of both the passenger and owner or operator, or is primarily for the attainment of some tagible and substantial objective or business purpose of the owner or operator, he is not a guest.

5. A benefit to the owner or operator of a motor vehicle sufficient to remove an occupant riding in it from the provisions of the guest statute must be a tangible and substantial one and a motivating influence for his furnishing the transportation.

6. The question of whether a person riding in a motor vehicle is a guest, or engaged in a joint enterprise, or other relationship, is generally one for determination in the individual case. It must be ascertained from facts establishing the identity of the persons advantaged by the carriage, the relationship between the parties, and the purposes to which the transportation is incident.

7. Where contributory negligence is pleaded as a defense, but there is no competent evidence to support such defense, it is prejudicial error to submit that issue to the jury.

8. Where contributory negligence of a plaintiff is taken from the jury by an instruction, it is prejudicial error to give other instructions imposing a duty upon such plaintiff to exercise due precautions and to look where he could see and listen where he could hear an approaching train.

9. Conflicting instructions are erroneous and they are prejudicial unless it is apparent from the record that the jury was not misled thereby.

John J. Wilson, Healey, Wilson & Barlow, L. Kenneth Cobb, Lincoln, for appellant.

Mason, Knudsen, Dickeson & Berkheimer, Richard Duxbury, Lincoln, J. W. Weingarten, Omaha, Jack Devoe, Elmer M. Scheele, Lincoln, for appellees.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought in the district court for Lancaster County by Nettie Carter as guardian of Troy V. Carter, an incompetent person, plaintiff, against the Chicago, Burlington & Quincy Railroad Company, a corporation, Roy Vermaas and Earl Vermaas, individually and doing business as Vermaas Service Station, Varmaas Service Station, Inc., a corporation, and United States Rubber Company, a corporation, defendants, to recover damages alleged by plaintiff to have been suffered by Troy V. Carter, resulting from a collision between an automobile, owned and operated by the defendant Roy Vermaas, and a train owned and operated by the defendant railroad company, occurring at the intersection of North Twenty-seventh Street, Lincoln, Nebraska, and the defendant railroad company tracks, on the evening of December 14, 1955.

The case was tried to a jury, resulting in a verdict in favor of the defendants Chicago, Burlington & Quincy Railroad Company, a corporation, Roy Vermaas and Earl Vermaas, individually and doing business as Vermaas Service Station, and Vermaas Service Station, Inc., a corporation.

The United States Rubber Company, a corporation, is in the case on the ground that it was and is obligated, pursuant to the workmen's compensation law of Nebraska, to make certain payments on behalf of Troy V. Carter who, at the time of the accident, was an employee of the defendant United States Rubber Company. This defendant filed an answer because of its claimed subrogation rights under the workmen's compensation law.

The plaintiff, Nettie Carter, guardian of Troy V. Carter, incompetent, filed a motion for new trial against the Chicago, Burlington & Quincy Railroad Company, a corporation, and a motion for new trial against the defendants Vermaas, as above designated. The trial court overruled both motions for new trial involving all defendants, of course except the United States Rubber Company. From the order overruling her motions for new trial, the plaintiff perfected appeal to this court.

All parties to this action agreed that at all times material to the case the defendants Roy Vermaas and Earl Vermaas were doing business as Vermaas Service Station; that Roy Vermaas was the owner and operator of the automobile involved in the accident that Vermaas Service Station, Inc., was a corporation organized and existing under the laws of the State of Nebraska and a successor to Roy Vermaas and Earl Vermaas doing business as Vermaas Service Station; that the defendant Chicago, Burlington & Quincy Railroad Company was a corporation organized and authorized to do business in the State of Nebraska, and said defendant was the owner of the train and engine involved in the accident which was being operated by Mr. Merle White, an employee who at all times was acting in behalf of said company and within the scope of his employment; that Nettie Carter was the duly appointed, qualified, and acting guardian of Troy V. Carter, an incompetent person; and that the accident occurred within the limits of the city of Lincoln, Nebraska.

For convenience Troy V. Carter will be referred to as Carter, or plaintiff's ward; the defendant Chicago, Burlington & Quincy Railroad Company, a corporation, as Burlington; the owner and operator of the automobile here involved as Roy Vermaas; the defendants Roy Vermaas and Earl Vermaas, individually and doing business as Vermaas Service Station, and the Vermaas Service Station, Inc., a corporation, as defendants Vermaas, or as Vermaas; Marvin L. McGee as McGee; and Joe E. Tomsik as Tomsik.

The plaintiff's petition alleged that on the evening of December 14, 1955, while Troy V. Carter was riding at the request of Roy Vermaas in his 1955 Packard sedan and was being driven by Roy Vermaas to the 'Steak House' owned by Earl Vermaas so that he could join them for certain contemplated business negotiations, and while proceeding north on North Twenty-seventh Street in the vicinity of the tracks of the defendant Burlington, Roy Vermaas did run into the path of a train that was proceeding in an easterly direction, resulting in a collision; and that said collision was the proximate result of the negligent and careless acts of omission and commission of the defendants and each of them, other than the United States Rubber Company, proximately resulting in injuries and damages which are fully set forth in the petition. The negligent acts of omission and commission of the defendant Burlington and defendant Roy Vermaas are set out in the petition. The petition further alleged that as a proximate result of the negligent acts of the defendants alleged, severe and permanent injuries resulted to the plaintiff's ward. The prayer of the petition was for damages in a substantial amount.

The answer of the Burlington admitted the acts of negligence of the defendant Roy Vermaas alleged by the plaintiff's petition; denied negligence on its part; alleged that the accident was caused by the negligence of the driver of the automobile, and set out the negligent acts of omission and commission of Roy Vermaas as the driver of the automobile involved, and of plaintiff's ward; alleged that the driver of the automobile and the plaintiff's ward were engaged in a joint enterprise; alleged contributory negligence on the part of the plaintiff's ward, setting forth several allegations wherein this defendant claimed that such ward was guilty of contributory negligence; and denied the allegation of the petition as to the injuries sustained by the plaintiff's ward. The prayer was that plaintiff's petition be dismissed.

The answer of the defendants Vermaas admitted that the defendant Burlington was negligent as alleged in the plaintiff's petition; denied negligence on their part; alleged that the accident was proximately and directly caused by the negligence of the defendant Burlington, and set forth the specific acts of negligence of the Burlington; and alleged that at all times the plaintiff's ward rode within the automobile of Roy Vermaas as a guest. The answer prayed for dismissal of the plaintiff's petition.

By amendment to the plaintiff's petition, the plaintiff pleaded that at all times mentioned there was in full force and effect a city ordinance of the city of Lincoln, limiting the speed of trains within the corporate limits to 18 miles an hour.

The plaintiff assigns as error the following: (1) The trial court erred in giving instruction No. 27 which stated that the jury was not at liberty to find the Burlington negligent on account of the speed alone at which the train in question approached the crossing in question; (2) the trial court erred in giving instruction No. 27 which...