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

• Decision Date: 15 May 1894
• Citation: 58 N.W. 1125,40 Neb. 660
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. WILGUS.

40 Neb. 660

58 N.W. 1125

CHICAGO, B. & Q. R. CO.

v.WILGUS.

Supreme Court of Nebraska.

May 15, 1894.

Syllabus by the Court.

1. Questions of negligence and contributory negligence, where the facts are such that from them different minds may reasonably draw different conclusions, are for the jury, and not for the court, to determine.

2. A railroad company does not discharge its whole duty by refraining from wantonly injuring a trespasser upon its tracks, after observing his position. It is bound, in all cases, to exercise reasonable care to avoid injuring all persons who are known to be, or who may be reasonably expected to be, upon its right of way.

Error to district court, Custer county; Neville, Judge.

Action by Charles W. Wilgus, administrator of the estate of Minnie M. Wilgus, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.Marquett & Deweese, J. S. Kirkpatrick, A. W. Agee, and J. A. Kilroy, for plaintiff in error.

Sullivan & Gutterson, for defendant in error.

IRVINE, C.

Minnie M. Wilgus was killed through a collision of two freight trains on the plaintiff in error's road at Mullen, and this action was brought by her father, as administrator, to recover damages on account of her death. The accident was the same which resulted in the death of John K. Wymore, and the opinion in the case of Railroad Co. v. Wymore, 58 N. W. 1120, contains a full statement of the facts. The evidence in this case differed but slightly from that in the Wymore Case. Upon the trial of this case, one witness testified that the switch key in question had failed to open the lock for another switch the day before the accident. In this case the engineer and fireman of the east-bound train testified that it was running only 10 or 12 miles an hour when it entered the switch, contradicting the plaintiff's witness in this respect. There were no other material differences in the evidence in the two cases. What has been said in the opinion in Railroad Co. v. Wymore as to the law of negligence and contributory negligence is entirely applicable to this case, and need not be repeated. The instructions here were, however, in strict accordance with the law, as announced in the Wymore Case. The assignments of error relating to the instructions, so far as they are presented in the briefs, refer only to the refusal to give the instructions asked by the railroad company. Of these, the fourth and ninth are the only ones to which plaintiff in error especially directs attention. The fourth was as follows: “If you find that the said Minnie M. Wilgus, just prior to her death, desired to cross the tracks and depot grounds of the defendant company, in order to reach the defendant's depot, and that the public roadway was at that moment obstructed by a train standing on the side track, this fact would not justify her in going upon the private grounds of the company, across and between the tracks and side tracks, and in front of and near the trains which were moving, or were liable to move, in order to reach the depot. That in such case it would be her duty to go upon the public crossing, and wait a reasonable time,...