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

• Decision Date: 18 September 1902
• Citation: 3 Neb. [Unof.] 425,91 N.W. 707
• Parties: CHICAGO, B. & Q. R. CO. v. ROBERTS.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 425

91 N.W. 707

CHICAGO, B. & Q. R. CO.

v.ROBERTS.

Supreme Court of Nebraska.

Sept. 18, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Johnson county; Stubbs, Judge.

“Not to be officially reported.”

Action by Moses Roberts against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.J. W. Deweese, F. E. Bishop, and S. P. Davidson, for plaintiff in error.

L. C. Chapman and George A. Adams, for defendant in error.

POUND, C.

Graf is a small station of the Burlington Railroad Company, which was defendant below, and is plaintiff in this court. The track at that point runs east and west. The village and station are on the north side of the main track. There is a side track to the south. Just east of the station a public highway crosses the tracks, which, according to the testimony adduced by the plaintiff, are 12 feet apart at that point. North of the tracks this road becomes the main street of the village. The Central Elevator Company has its scales and office building 8 feet south of the side track, and some 34 feet east of the crossing. Its elevator is still further to the east on the same side of the track. The wagon road from this elevator and its scales runs parallel with the side track about 30 feet distant, and turns into the road very close to the crossing of the side track, necessitating a somewhat sharp turn at that point. The crossing is higher than the road, and at the point where the road from the elevator turns in there is a slight ascent. On the same side of the track, 215 feet west from the crossing, there is another elevator, known as the “Duff Elevator.” On August 30, 1898, a number of freight cars were standing on the side track west of the crossing between the crossing and the Duff Elevator. According to the testimony of plaintiff and his witnesses, the car nearest the crossing was within 5 or 10 feet of the planks. The car furthest distant was near the elevator. Plaintiff did not count them, but estimates from his general recollection that there were 12 or 14 in all. The records of the station, however, show clearly that there were 5 only, and this agrees with the distances and the evidence as to where the cars were placed. Late in the afternoon of that day, plaintiff was at the scales east of the crossing with a team and a lumber wagon, and had been weighing a load of coal. He then drove toward the crossing, intending to take the road north across the tracks. As has been seen, his course lay close to and parallel with the tracks, and his view of the main track for some 200 feet east of the crossing was cut off by the cars; nor could he see between them, because he was going toward the end of the car nearest him, not at right angles to the row. When he was about to start, he heard a noise which he supposed was due to a windmill, and seems to have given no more attention. He had been about the crossing for several hours, and knew exactly how the land lay, and how far his view was obstructed by the standing cars. Nevertheless, starting close to the track, with no way of seeing the main track beyond the elevator, as he could have done had he come down the public road from the south, he took no further precaution than inquiring as to the noise, and learning that no train was due. He drove to the crossing, turned into the main road, and was about to cross at what he calls “pretty fair speed.” At this point a hand car operated by four laborers in the employ of the company came down from the west on the main track, ran in front of the team, and frightened them so that they turned sharply and ran away, breaking the wagon and injuring the plaintiff. The hand car was running slowly as it approached the crossing,--probably not more than 5 miles an hour,--and was stopped promptly as soon as it was seen that the horses were frightened; not going more than 20 feet according to one witness, or 50 feet according to another. Upon this evidence a jury found for the plaintiff, and a judgment was rendered accordingly, from which error is prosecuted.

We are of opinion that the verdict and judgment ought not to stand. The plaintiff pleads and the evidence shows that the accident was due to his horses becoming frightened at the hand car. But this, of itself, would not make the defendant liable. The ordinary operation of a hand car is one of the incidents of a railroad, and horses must become used to such appliances, as the many others with which modern highways abound. In this era of bicycles, automobiles, trolley cars, traction engines, and steam fire engines, we cannot take the nerves of the horse as the measure of rights in the highway. Unless there is something so unusual and out of the ordinary about an appliance of this sort that, in the proper and reasonable use of public thoroughfares, it has no place on roads frequented by teams, no liability arises from its ordinary operation, even though horses are frightened. Holland v. Bartch, 120 Ind. 46, 22 N. E. 83, 16 Am. St. Rep. 307;Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545, 28 L. R. A. 608, 49 Am. St. Rep. 533;Piollet v. Simmers, 106 Pa. 95, 51 Am. Rep. 496;Yingst v. Railway Co., 167 Pa. 438, 31 Atl. 687;Patnoude v. Railroad Co. (Mass.) 61 N. E. 813;Gilbert v. Railway Co., 51 Mich. 488, 16 N. W. 868, 47 Am. Rep. 592;Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522. See, also, Railroad Co. v. Loree, 4 Neb. 446. Hence plaintiff must show not only that his horses were frightened by the hand car, but that their fright was caused by some negligence of the railroad company or its servants, and not by the ordinary operation of the car. The same degree of care is required of a railroad company operating a road across a public highway and of persons using the highway. Each is bound to use such care in order to avoid accidents as is commensurate with the danger involved under the circumstances of the particular crossing. Railroad Co. v. Cody, 166 U. S. 606, 615, 17 Sup. Ct. 703, 41 L. Ed. 1132; Railroad Co. v. Talbot...