Chicago, Burlington & Quincy Railroad Co. v. Hague

• Decision Date: 10 April 1896
• Docket Number: 6382
• Citation: 66 N.W. 1000,48 Neb. 97
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. L. W. HAGUE, EXECUTOR
• Court: Nebraska Supreme Court

66 N.W. 1000

48 Neb. 97

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. L. W. HAGUE, EXECUTOR

No. 6382

Supreme Court of Nebraska

April 10, 1896

ERROR from the district court of Kearney county. Tried below before BEALL, J.

REVERSED AND REMANDED.

J. L McPheely, T. M. Marquett, J. W. Deweese, and W. S. Morlan for plaintiff in error.

Stewart & Munger and L. W. Hague, contra.

OPINION

IRVINE, C. J.

This was an action under Compiled Statutes, chapter 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, article 1, section 3, Compiled Statutes, 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 Missouri P. R. 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 Union P. R. Co. v. Porter, 38 Neb. 226, 56 N.W. 808, in St. Joseph & G. I. R. 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 Omaha & R. V. R. 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 Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 642, 39 Neb. 803, 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 cannot disturb the verdict. With these principles in view we pass to an examination of the evidence.

Stein lived at Minden. He boarded a west-bound 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 twenty 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 ten minutes, the interval was availed of for the purpose of uncoupling the engine and running it on to the station for water. This manoeuvre 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 plaintiff frankly conceded that if Stein attempted to alight in spite of an express warning as to the situation of the caboose and the danger of the attempt, negligence on his part would be established. On the other hand, it was practically conceded that his attempt to alight, in the absence of knowledge on his part of the situation, would not present so clear a case as to justify the withdrawal of the issue from the jury. The conclusion we reach is such that we may assume, for the purposes of this case, that the latter position is correct. There is no doubt that the conductor gave a general warning to the passengers not to get off, stating as a reason that the caboose was on a bridge; and our effort is therefore to ascertain whether or not there was a conflict in the evidence as to whether Stein understood this warning. If the evidence was conflicting, the finding of the jury for the plaintiff must on this branch of the case be taken as conclusive. There were in the caboose when the train stopped the conductor and five passengers. At the east, the rear end, was what is termed the "cupola." The conductor had been sitting in this. From this cupola west extended seats on either side, on which the passengers were sitting or reclining. Mr. Martin, one of the passengers, was not a witness. We have the testimony of the other passengers and of the conductor. The conductor was called by the defendant. He testified that when the train stopped he saw that he was on a bridge. He descended from the cupola and told the passengers that they were at Minden, but not to get out, as they were on a high bridge. Then he stepped to the east door and Stein stepped up beside him. Then he went to the west door. He then returned and reascended to the cupola, when he heard a groan and descending found that Stein was missing. Then comes this testimony:

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