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

• Decision Date: 10 April 1896
• Citation: 66 N.W. 1000,48 Neb. 97
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. HAGUE.

48 Neb. 97

66 N.W. 1000

CHICAGO, B. & Q. R. CO.

v.HAGUE.

Supreme Court of Nebraska.

April 10, 1896.

Syllabus by the Court.

1. Under the provisions of section 3, art. 1, c. 72, Comp. St., it is only necessary, to a right of recovery against a railroad company, to show that the person injured was, at the time, being transported as a passenger over the defendant's line of railroad, and that the injury resulted from the management or operation of said railroad. A presumption thereupon arises that such management or operation was negligent, and it can be met only by showing that the injury arose from the criminal negligence of the party injured, or that it was the result of the violation of some express rule or regulation of said railroad company actually brought to the notice of the party injured. Railroad Co. v. Baier, 55 N. W. 913, 37 Neb. 235, followed.

2. Criminal negligence, as the term is used in the statute, means such negligence as amounts to a flagrant and reckless disregard of one's own safety, and a willful indifference to the injury liable to follow. Railroad Co. v. Chollette, 49 N. W. 1114, 33 Neb. 143, followed.

3. Evidence examined, and held to so clearly disclose criminal negligence on the part of the person injured as to permit no reasonable inference to the contrary.

Error to district court, Kearney county; Beall, Judge.

Action by L. W. Hague, executor of Robert P. Stein, deceased, against the Chicago, Burlington & Quincy Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.W. S. Morlan, J. L. McPheeley, and Marquett & Deweese, for plaintiff in error.

L. W. Hague and Stewart & Munger, for defendant in error.

IRVINE, C.

This was an action under Comp. St. c. 21, by Hague, as executor of Robert P. Stein, deceased, against the Chicago, Burlington & Quincy Railroad Company, on account of injuries causing the death of decedent. The plaintiff had a verdict and judgment for $4,000. The sufficiency of the evidence to sustain the verdict is presented for review by a direct assignment of error, and also by an assignment based on the refusal of the court to give an instruction directing a verdict for the defendant. In support of these assignments the railroad company contends--First, that the evidence does not in any manner tend to charge it with negligence; and, secondly, that the uncontradicted evidence discloses that Stein was guilty of contributory negligence.

The first argument is completely answered by the uncontradicted proof that Stein was a passenger, lawfully riding on a train of the railroad company, when the injury was inflicted. Chapter 72, art. 1, § 3, Comp. St., provides: “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the persons injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.” The railroad company contends that the phrase, “damages inflicted upon the person of passengers,” indicates that, in order to charge the railroad, it must appear that the injury was the result of some negligent omission or commission on the part of the railroad. This construction is not tenable. In Railroad Co. v. Baier, 37 Neb. 235, 55 N. W. 913, it was held that, under this statute, it is necessary to prove only that the injured person was a passenger being transported over the line of railroad of the defendant, when damages were inflicted upon the person of such passenger; that proof of such facts raises a presumption of negligence on the part of the railroad company, which can be rebutted only by proof of negligence on the part of the passenger, or the violation by him of some express rule or regulation of the railroad actually brought to his notice. This construction has been followed in Railroad Co. v. Porter, 38 Neb. 226, 56 N. W. 808, in Railroad Co. v. Hedge, 44 Neb. 448, 62 N. W. 887, and in other cases, and it is undoubtedly correct. It was therefore unnecessary for the plaintiff to prove that Stein's death was caused by any specific negligence on the part of the railroad.

We preface a consideration of the evidence with relation to the second argument with the remark that, the case being within the statute, it was insufficient for the railroad company merely to establish such a degree of negligence on the part of Stein as would prevent a recovery in ordinary cases of personal injuries. The statute requires, as a defense, that the person injured should have been guilty of “criminal negligence.” In Railroad Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114, this court approved an instruction to the effect that “criminal negligence,” as the term is used in the statute, means gross negligence,--such negligence as would amount to a flagrant and reckless disregard of one's own safety, and a willful indifference to the injury liable to follow. In later cases the foregoing has been accepted as a correct interpretation of the statute. It must also be borne in mind that it is the settled law of this state that, even where the facts are undisputed, the question of negligence is for the jury, where different minds may reasonably draw different inferences from those facts. This rule has been many times announced, and was applied in Railroad Co. v. Landauer, 36 Neb. 642, 54 N. W. 976, and Id., 39 Neb. 803, 58 N. W. 434, where the court examined the evidence in a similar case, and held that it permitted no reasonable inference except that of criminal negligence on the part of the person injured. Therefore, the question presented to us is not whether, to our minds, the evidence here discloses that Stein was guilty of criminal negligence, as above defined,but rather whether, under the facts disclosed, any other inference is reasonable. If so, we could not disturb the verdict. With these principles in view we pass to an examination of the evidence.

Stein lived at Minden. He boarded a westbound freight train, carrying passengers, at Hartwell, the first station east of Minden, for the purpose of returning home. The passengers, including Stein, were in the caboose, at the rear end of the train. The train arrived at Minden about 2 a. m. The night was misty and dark. About 1,300 feet east of the station at Minden, there is a bridge, some 20 feet high. Five hundred feet east of the station there is a switch leading to a side track. As the train approached Minden, it stopped at such a point that the caboose stood upon the bridge. It seems that this stop was made for the purpose of taking the side track, to permit a passenger train to pass, and that it was made at this point because the front end of the train was then at the switch. The passenger train not being due for about 10 minutes, the interval was availed of for the purpose of uncoupling the engine and running it on to the station for water. This maneuver left the caboose upon the bridge for several minutes, and, during that period, while there is no direct evidence on the subject, it is quite clear, from inference, that Stein passed out the rear door of the caboose, and fell to the ground beneath the bridge, probably in an attempt to alight from the train. The railroad company claims that the evidence shows that Stein had received, and had understood, an express warning that the caboose was on the bridge, and that he attempted to alight in spite of that warning. The plaintiff contends that, on this point, there was a conflict of the evidence, which must be resolved in his favor, in accordance with the verdict of the jury. On the argument it was practically conceded that the question of contributory negligence turned on this point. The...