Chi., B. & Q. R. Co. v. Metcalf

• Decision Date: 16 April 1895
• Citation: 63 N.W. 51,44 Neb. 848
• Parties: CHICAGO, B. & Q. R. CO. v. METCALF.
• Court: Nebraska Supreme Court

44 Neb. 848

63 N.W. 51

CHICAGO, B. & Q. R. CO.

v.METCALF.

Supreme Court of Nebraska.

April 16, 1895.

Syllabus by the Court.

1. Section 104, c. 16, Comp. St., requiring that a bell shall be rung or a steam whistle sounded by a locomotive at a distance of at least 80 rods from the place where a railroad shall cross any other road or street, etc., applies as well to roads in fact used by the public, though not dedicated as public highways, as to those so dedicated.

2. The object of that statute is not merely to protect persons intending to cross the track from collisions, but also to protect all persons lawfully at or near the crossing from any danger naturally to be apprehended from the sudden approach, without warning, of a train at such a place.

3. Therefore, where a crossing had been provided at a railway station to afford access to the depot, one whose team had been driven to a car upon a side track near the depot, for the purpose of unloading the car, was within the protection of the statute.

4. In such case it was erroneous to instruct the jury that the railroad company was liable if it failed to give the signal required by statute, provided the injury was caused in consequence of such omission. Railway v. Rassmussen, 41 N. W. 778, 25 Neb. 810, in so far as it states a contrary doctrine, overruled.

5. Where chattels are injured by the negligence of another, but not wholly destroyed, the measure of damages is the difference between the value of the chattels immediately before their injury and immediately thereafter.

6. One whose chattels are injured by the negligence of another cannot, by voluntarily abandoning what remains, charge that other with the total value of the chattels; and where there was evidence tending to show that the destruction was not total, and that the plaintiff had so voluntarily abandoned what remained, it was error to instruct the jury that the measure of damages was the market value of the chattels before their injury.

Error to district court, Hamilton county; Wheeler, Judge.

Action by Horace C. Metcalf against the Chicago, Burlington & Quincy Railroad Company for damages for injuries to a team of mules. Plaintiff had judgment, and defendant brings error. Reversed.A. W. Agee and Marquett & Deweese, for plaintiff in error.

Whitmore & Carr and E. J. Hainer, for defendant in error.

IRVINE, C.

Metcalf sued the railroad company to recover damages for injuries done to a team of mules, a wagon, and set of harness which had been struck by a train of the company near the station at Hampton. There was a verdict and judgment for the plaintiff for $365.42, to reverse which the railroad company prosecutes error.

The evidence upon which the verdict is evidently based tends to show that at Hampton the plaintiff in error's railroad passes through the village in an easterly and westerly course, nearly all of the inhabited portion of the village lying north of the tracks. There is a side track, with switches at either end, lying north of the main line. The station is situated between the main line and the side track, at a point not far from the west switch. Two highways cross the tracks, one being Third street, or, as the witnesses designated it, Main street, about 275 feet east of the depot. The other, a section-line road at the east boundary line of the village, about 1,000 feet from the depot. In addition to these crossings, there are two others, one immediately east, and one immediately west, of the depot platforms. These crossings are not on public highways, but were placed by, or at least with the consent of, the railroad company, for the purpose of affording access to its depot and platform. The main line, the side track, and the depot platform outline a triangle west of the depot, and one of the crossings referred to affords an entrance to the space thus inclosed. The primary object of this crossing was to afford access for teams to the west platform. In unloading and loading cars standing on the side track to the west of the depot, it is practicable either to drive a wagon north of the side track, close to the cars, or south of the side track, by means of this crossing, into the triangular space referred to. Metcalf owned a mill situated some distance south of the tracks. His manager had been notified that a car load of coal consigned to him had arrived, and a servant named Dixon was instructed to take the mules and wagon and unload this coal. The car stood upon the siding, a short distance west of the depot. Dixon drove over the Main street crossing to the north side of the car, and from that side took one wagon load of coal. Returning for the second load, he testifies that he found the Main street crossing blocked by cars, and therefore drove by the depot, and over what we have called the “West Crossing,” into the triangular space, and approached the car from the south side. He applied the brake to the wagon, wrapped the lines around the brake handle, and, mounting the car, was engaged in shoveling coal into the wagon, when a freight train approached from the east, frightening the mules, which ran towards the crossing, and were there struck by the train. One mule was killed, the other severely injured, and the harness and wagon were torn to pieces. The negligence alleged is that the train was behind its schedule time, that it was running at a dangerous rate of speed, and that no signals were given, by bell or whistle, of the approach of the train. Of the errors assigned, it will be necessary to consider only those relating to the instructions.

Complaint is made of the refusal of each of the instructions numbered 4, 5, 6, 7, 10, 11, asked by the defendant. Of these, the refusal of the tenth is the only assignment noticed in the briefs, and the others must therefore be deemed waived. The record does not contain any instruction numbered 10, so that we are unable to consider whether or not its refusal was erroneous. The seventh instruction given by the court is as follows: “(7) The jury are instructed that if the evidence shows that the crossings immediately east and west of the depot at Hampton were placed there by the railroad company for the use of persons having business at or about the depot, in either loading or unloading cars, and such crossings were in fact so used generally, then it was the duty of the person in charge of the engine in question to sound the signal provided by law, precisely the same as for any other crossings, and as elsewhere explained in these instructions.” Section 104, c. 16, Comp. St., is as follows: “Sec. 104. A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect.” It is argued that a proper construction of this section limits its application to public highways, and that the crossing where the accident occurred is not within the purview of the law, and that the instruction is therefore erroneous. We do not think the statute should be given so narrow an application. Some courts have held that such a statute is in derogation of the common law, and therefore the subject of strict construction; but we think, in most of the cases where such statutes have been confined in their application to public highways, the language of the statute was such as to evidently call for such restriction. The object of the law was plainly to afford ample warning to persons near the railroad at points where they might lawfully cross, and probably where they were about to cross as trains approached. These crossings were expressly designedto afford access to the depot of the railroad company, and the exigency for warnings was probably as great there as at highway crossings on the prairie. Therefore, we think that when the court instructed the jury that the duty to sound signals applied to this crossing, provided the jury should find that the crossings were placed there by the railroad company for the use of persons having business about the depot, and that such crossings were in fact so used generally, the law was stated as favorably to the railroad company as could be required. The language of the statute is, “where the said railroad shall cross any other road or street”; and we hold that it applies as well to roads in fact used by the public, though not legally dedicated to public use, as to those so dedicated. The instruction was therefore correct.

The eighth instruction is as follows: “(8) The court instructs the jury that, by the laws of this state, every railroad company is required to have a bell of at least 30 pounds weight, and a steam whistle, placed and kept on each locomotive engine, which shall be rung or whistled at the distance of at least 80 rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have passed said road or street, and that the company shall be liable for all damages resulting by reason of a neglect to comply with such law. Now, if the jury believe from the evidence that the persons in charge of the engine in question omitted to sound a whistle or ring a bell continuously for the distance of 80 rods before reaching the crossing at which the team in question was struck, and you further believe from the evidence that the team was struck, as charged in the petition, in consequence of the omission to ring the bell or sound the whistle while the person in charge of the team was in the exercise of all reasonable care and caution...