Chicago, Burlington And Quincy Railroad Company v. Russell

• Decision Date: 09 June 1904
• Docket Number: 13,520
• Citation: 100 N.W. 156,72 Neb. 114
• Parties: CHICAGO, BURLINGTON and QUINCY RAILROAD COMPANY v. LEWIS RUSSELL
• Court: Nebraska Supreme Court

100 N.W. 156

72 Neb. 114

CHICAGO, BURLINGTON and QUINCY RAILROAD COMPANY v. LEWIS RUSSELL

No. 13,520

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Richardson county: JOHN S. STULL JUDGE. Affirmed.

AFFIRMED.

Francis Martin, O. J. Weaver, J. W. Deweese and Frank E. Bishop, for plaintiff in error.

E Falloon, John Gagnon and C. Gillespie, contra.

OLDHAM C. AMES, C., concurs.

OPINION

OLDHAM, C.

Rulo, Richardson county, Nebraska, 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 ten or twelve 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 fifteen feet, and the train then consisting of an engine and ten cars all coupled together completely blocked the passage both on the street and the sidewalk leading to the depot. About two feet west of the hindmost car of the freight train was a string of seven or eight 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 two 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 twenty or thirty 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 twelve 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 employees, 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 sidetrack 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 employees, 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 drawheads of said detached portion of the train, severing the second finger of the right hand and violently throwing plaintiff to the ground."

Defendant's answer was, in substance, a general denial and a plea of contributory negligence. On the issues thus joined, there was a trial to a jury in the court below, a verdict for plaintiff for one thousand dollars, judgment on the verdict, and defendant railroad company brings error to this court.

When the case was submitted to the jury, special findings of fact were returned at defendant's request. These findings, we think, are all fully supported by the testimony, and are as follows:

"1. Did the freight cars stand over and across the sidewalk and wagon road when Lewis (plaintiff) came to them from the south? Answer, Yes.

"2. Were the cars continuous and connected to each other from the sidewalk east to the engine? Answer, Yes.

"3. Was there any open space left between the cars within the limits of the sidewalk? Answer, No.

"4. Was there any open space between the cars west of the sidewalk? Answer, Yes.

"5. If there was an open space between the cars west of the sidewalk, was it caused by space accidentally left between the cars backed in and other cars standing on the house track? Answer, Yes.

"6. If there was an open space, how far was it west of the sidewalk, and how wide was such space? Answer, 15 feet west from sidewalk. Opening...