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

• Decision Date: 15 May 1894
• Citation: 58 N.W. 1120,40 Neb. 645
• Parties: CHICAGO, B. & Q. R. CO. v. WYMORE.
• Court: Nebraska Supreme Court

40 Neb. 645

58 N.W. 1120

CHICAGO, B. & Q. R. CO.

v.WYMORE.

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.

3. A railroad company had connected with it a relief department, composed of employes who contributed certain amounts from their wages towards an insurance fund for their relief when injured, and for the relief of beneficiaries named in case of death. The railroad company collected the funds, furnished the necessary clerical force, and guarantied payment of loss. A member of this association agreed that, in consideration of the amounts paid by the company, the acceptance of benefits for injury or death should operate as a release and satisfaction of all claims for damages against the company, arising from such injury or death, which could be made by him or his legal representatives. He was killed in an accident upon the railroad. The beneficiary named was his widow, who accepted the benefit, and, by instrument in writing, received it “in full satisfaction and discharge of all claims or demands on account of, or arising from, the death of said deceased, which I now have, or can hereafter have,” against either the relief fund or the railroad company. Subsequently, as administratrix, she brought suit for damages against the railroad company on behalf of herself and children. Held: (1) That the deceased's contract did not, of itself, waive a right of action; (2) that neither that contract, nor the acceptance of the money or release of liability by the widow, operated to bar a right of action by the administratrix on behalf of the children; (3) that her voluntary acceptance of the benefit, and release of the company, did operate to bar any action for her own benefit.

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

Action by Miranda Wymore, administratrix, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.T. M. Marquett, J. W. Deweese, and J. S. Kirkpatrick, for plaintiff in error.

Sullivan & Gutterson, for defendant in error.

IRVINE, C.

This was an action under chapter 21, Comp. St., by Miranda Wymore, as administratrix of John K. Wymore, deceased,against the plaintiff in error, for damages caused by the death of said John K. Wymore. On the 25th day of August, 1890, at about 2 o'clock in the morning, a special freight train of the plaintiff in error reached the station of Mullen, bound west. The operator at Mullen was instructed by the train dispatcher to hold the special for an east-bound train. The operator gave the order to the conductor, and after the lapse of two or three minutes the train pulled away from the station, westward. There was a side track south of the main track, with a switch at each end. The special stopped after it had passed the west switch. The brakeman at the rear of the train opened the switch, and boarded the train. The train backed upon the side track. After it had passed upon the side track the brakeman at the front end of the train undertook to close the switch, but his key failed to open the lock. While he was struggling to close the switch the east-bound train came in sight, around a curve. There is evidence tending to show that it was running at a rate of about 30 miles an hour. The brakeman signaled it to stop, and then renewed his efforts to close the switch. The evidence also shows that an open headlight is a signal that the main track is obstructed, and that the headlight of the west-bound special was left open. There is evidence tending to show that the engineer of the east-bound train endeavored to stop his train after he saw the brakeman's signal; but he evidently failed to do so, for the east-bound train entered the switch, collided with the west-bound train, and the result was that the two engines and a number of cars were heaped together upon the two tracks, and upon the space between them. Wymore was a section foreman in the employ of the railroad company, and resided in a section house upon the right of way of the railroad south of the tracks, west of the station, and almost due south of the point where the west-bound engine stood at the time of the collision. A young lady named Wilgus had come to Mullen that day for the purpose of taking a passenger train which was due at Mullen about half past 3 in the morning. She had gone to Wymore's house, and she and Wymore left the house for the depot about 2 o'clock. When the wreck was cleared away their dead bodies were found beneath the wreck, and between the side track and the main track. A public roadway, accessible from Wymore's house, crossed both tracks between Wymore's house and the station, which was situated north of the main track. The inference is that Wymore and Miss Wilgus, on leaving the house, found the roadway blocked by the west-bound train on the side track, and, in the effort to reach the station, crossed the side track at a point almost north from Wymore's house, and were proceeding between the two tracks, towards the depot, when the wreck occurred. There was evidence tending to show that the tracks were at that point from 15 to 25 feet apart. The negligence alleged as constituting the cause of action was the delay of the conductor of the west-bound train in side-tracking his train; the running of the train westward to enter the side track from the west switch, instead of from the east; the failure of the company to provide the brakeman with a proper key to the switch; and the running of the east-bound train at a high and dangerous rate of speed as it approached the station and switch. The railroad denies negligence, and avers contributory negligence. There was a verdict and judgment for the plaintiff, from which the railroad prosecutes error.

The assignments of error argued relate to the instructions. The second instruction given by the court is as follows: “Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury; and in this connection the court instructs you that it was the duty of the railroad company to provide, and furnish its employes with, proper and suitable machinery, implements, and equipments to operate its trains with reasonable safety. In considering whether the company has been guilty of negligence, you will inquire whether the switch which led to the side track was kept locked, and whether the company furnished the brakeman whose duty it was to unlock said switch a key, which the person charged with the duty of furnishing such key had reason to believe was suitable for the purpose intended; and if you find that there was negligence on the part of the company in this particular, and that because of the failure to furnish such key the injury occurred, and the death of the deceased was thereby caused, and you further find that the deceased was rightfully upon the premises, and killed there by reason of the company's negligence, you will find for the plaintiff. And, in considering the question whether the deceased was rightfully upon the premises where his body was found, I instruct you that a railway company has a right to obstruct a public road by permitting its cars to remain upon the same for the period of ten minutes; that a person traveling on foot, after waiting such time, has a right to go around the obstruction; and that if the deceased, after so waiting, went around the obstruction, and, at the time he did so, was vigilant, and careful to avoid apparent danger, he was not guilty of contributory negligence.”

The first objection to this instruction is based upon the argument that the company owed no duty to a trespasser upon its grounds, except where the company was guilty of wanton or willful negligence after discovering the position of such trespasser. A number of cases are cited in support of that argument. But the same argument was advanced in the case of Railroad Co. v. Grablin (Neb.) 56 N. W. 796, and this court refused to adopt the doctrine contended for. It is true that no special duty is, in such case, devolved upon the railroad company in favor of the particular person injured; but the general duty still does remain of operating its trains with due regard to the safety of all persons who are, or who may be reasonably expected to be, exposed to danger by reason of any failure to exercise reasonable care. The consequences of adopting the doctrine contended for may be illustrated by the language used in one case in which it is announced, and a case which is cited by the plaintiff in error evidently for the purpose of calling attention to this particular language. In Railroad Co. v. Hummell, 44 Pa. St. 375, the court says: “There is as perfect a duty to guard against accidental injury to a night intruder coming into one's bed chamber as there is to look out for trespassers upon a railroad where the public has no right to be.” Surely, counsel cannot expect this court to accept without question the authority of a case where the author of the opinion has felt compelled to resort to such language as this to justify the conclusion reached. Even in the case cited, it is intimated that the company would be bound to exercise ordinary care,--a dictum which mitigates to some extent the barbarity of the language quoted. What constitutes ordinary...