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

• Decision Date: 09 June 1904
• Citation: 72 Neb. 114,100 N.W. 156
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. RUSSELL.

72 Neb. 114

100 N.W. 156

CHICAGO, B. & Q. R. CO.

v.RUSSELL.^a1

Supreme Court of Nebraska.

June 9, 1904.

Syllabus by the Court.

1. No arbitrary rule can be established to fix the time at which a child, during its minority, may be declared wholly capable or incapable of understanding and avoiding dangers to be encountered upon railroad tracks. Ordinarily such question is one of fact for the jury.

2. Where a freight train is stopped across a village street and sidewalk near the depot for the period of 20 or 30 minutes, and there is an opening of 2 feet between the hind car of the freight train and a stationary car on the side track, about 15 feet from the sidewalk, in an action for injuries sustained while passing through this opening it is proper to show that plaintiff saw others crossing through this opening ahead of him, and that it was the custom of the railroad company, for a long time prior thereto, to make openings of a similar character through freight trains similarly situated, for the purpose of showing a license or invitation of the railroad company to the public to pass through this opening.

3. Where the hind car of a freight train projects over and across a public crossing, and remains in this condition for a period of 20 or 30 minutes, and a large number of people are at the depot, and necessarily pass around the rear end of the car in going to and from the depot, it is for the jury to determine whether it is actionable negligence for the railroad company to start its train with a backward motion, without giving a special warning before doing so.

4. Evidence examined, and held sufficient to sustain the judgment of the trial court.

Commissioners' Opinion. Error to District Court, Richardson County; Stull, Judge.

Action by Lewis Russell, by Abraham Russell, his next friend, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.Francis Martin, O. J. Weaver, J. W. Deweese, and Frank E. Bishop, for plaintiff in error.

E. Falloon, John Gagnon, and C. Gillespie, for defendant in error.

OLDHAM, C.

Rulo, Richardson county, Neb., is a town of about 900 inhabitants, situated on the banks of the Missouri river, and traversed from east to west by the main line of the Chicago, Burlington & Quincy Railroad Company. The greater number of the inhabitants reside south of the tracks of such company. There are three side tracks and the main-line track of this company on the north side, and one side track, called the “house track,” on the south side of the depot. Third street runs north and south from the southern boundary of the town to the depot, and is one of the mainly traveled streets of the village. There is a sidewalk on the west side of this street, leading immediately to the depot platform, and east of this sidewalk is the traveled street. At the time of the occurrence of the injury on which this cause of action is founded, there was a freight train, consisting of an engine and 10 or 12 cars, in the yards at the station between 4 and 5 o'clock in the evening. This freight train, which was switching in the yards, left its caboose upon one of the tracks north of the depot, and backed in on the south or house track for the purpose of allowing two passenger trains, each going east, to proceed on the main track. When the freight train backed in on the house track, its hindmost car extended over and beyond the sidewalk on the west side of the street leading to the depot for a space of about 15 feet, and the train then, consisting of an engine and 10 cars all coupled together, completely blocked the passage both on the street and the sidewalk leading to the depot. About 2 feet west of the hindmost car of the freight train was a string of 7 or 8 cars which had been previously backed in on this house track to an elevator west of the sidewalk, so that, when the train stood in the position it occupied at the time of the injury, there was a space of about 2 feet between the rear car of the freight train and the foremost car in the string of cars remaining stationary on the track. The freight train remained in this position for some 20 or 30 minutes, during the time the passenger trains were arriving and departing over the main-line track on the north side of the depot. Plaintiff, a boy 12 years of age, who brings this action by his next friend, came up the sidewalk on Third street from the south to go to the depot, and from there to his home, in the northwest portion of the village; and, when he found the passage blocked on the sidewalk by the freight cars, according to the testimony offered on his behalf, he turned and went around the rear car attached to the freight train, and attempted to pass through the space between this car and the stationary car west of it, and, while doing so, the freight train, in preparing to move forward to open the way, first slackened back, as one of the witnesses described it, for the purpose of loosening the brakes, and, when it had done so, it caught the hand of plaintiff between the drawhead on the hindmost car of the freight train and the drawhead of the stationary car standing on the track, and inflicted a severe injury to plaintiff. The material allegations of negligence relied upon by plaintiff in his petition are as follows: “That plaintiff further alleges that on the 19th day of December, 1898, the said railroad company, through its agents and employés, had a freight train which stopped at said station on a side track for the purpose of allowing another train to pass. That the defendant railway company at that time negligently, wrongfully, and unlawfully obstructed the usual public travel on Third street across said line at said station for about thirty or forty minutes with its freight train of cars. That persons going to and from said station on Third street objected to the unlawful closing of Third street, upon which objection the defendant railway company disconnected and separated two of the cars of said freight train about two feet apart at or near the sidewalk of said street leading to said station, for the purpose of allowing the foot travelers to cross the railway track of the defendant. Between the opening of said train the travel, on invitation of defendant, was resumed at or near said sidewalk between the cars. That during the time said two cars of said train were disconnected and separated, and the travel was resumed on said side track through the opening thus made, this minor plaintiff, a child of immature years, on said date, and without fault on his part, started from the south side of said train on said line of travel to go home through said opening in said freight train, and while attempting to do so, the defendant railway company, by its agents and employés, without warning, negligently and wrongfully, and without stationing a guard at said opening to warn the public passing through the opening of said train of cars when the opening in the cars would be closed, negligently, wickedly, and violently, by means of the engine attached to said train, closed the opening in said train of cars, catching the plaintiff between the...