Chicago, Burlington & Quincy Railroad Company v. Metcalf
| Decision Date | 16 April 1895 |
| Docket Number | 5803 |
| Citation | 63 N.W. 51,44 Neb. 848 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. HORACE C. METCALF |
| Court | Nebraska Supreme Court |
ERROR from the district court of Hamilton county. Tried below before WHEELER, J.
REVERSED AND REMANDED.
A. W Agee, for plaintiff in error:
The signals required by statute to be given when a train is approaching a public street or highway is exclusively for the benefit of persons traveling along such street or highway and about to cross the railroad at the highway crossing.
The seventh and eighth instructions are erroneous.
The evidence does not support the verdict, because the only allegation of negligence which it is claimed contributed to the injury is that the signals required by statute to be given at public crossings were not given, and this allegation is not supported by the evidence.
Marquett & Deweese, also for plaintiff in error.
Whitmore & Carr, contra, in their argument upon the legal duty or obligation of the company to the defendant in error, cited the following cases: Sweeney v. Old Colony & N. R. Co., 10 Allen [Mass.], 368; Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Texas & P. R. Co. v. Best, 66 Tex. 116; McKone v. Michigan C. R. Co., 51 Mich. 601; Davis v. Chicago & N. W. R. Co., 58 Wis. 646; Virginia M. R. Co. v. White, 84 Va. 498; Barry v. New York C. & H. R. R. Co., 92 N.Y. 289; Erickson v. St. Paul & D. R. Co., 43 N.W. [Minn.], 332; Lonergren v. Illinois C. R. Co., 49 N.W. [Ia.], 852; New York, L. E. & W. R. Co. v. Leamon, 15 L. R. A. [N. J.], 426; Chicago, B. & Q. R. Co. v. Daugherty, 110 Ill. 521; Grippen v. New York C. R. Co., 40 N.Y. 34; South & North Alabama R. Co. v. Thompson, 62 Ala. 499; Finklestein v. New York C. & H. R. R. Co., 41 Hun [N. Y.], 34; Shaber v. St. Paul, M. & M. R. Co., 28 Minn. 107; Macon & W. R. Co. v. Davis, 18 Ga. 686; Norton v. Eastern R. Co., 113 Mass. 366; Dyson v. New York & N. E. R. Co., 57 Conn. 23; Union P. R. Co. v. Rassmussen, 25 Neb. 810; Omaha, N. & B. H. R. Co. v. O'Donnell, 22 Neb. 475.
As to the rate of speed of the train and the failure to ring the bell the following authorities were cited: Rockford, R. I. & St. L. R. Co. v. Hillmer, 72 Ill. 935; Chicago, B. & Q. R. Co. v. Cauffman, 38 Ill. 425; City of Plattsmouth v. Mitchell, 20 Neb. 228; Stevens v. Howe, 28 Neb. 547; American Water-Works Co. v. Dougherty, 37 Neb. 373; McKean v. Burlington, C. R. & N. R. Co., 55 Iowa 194; Knowles v. Mulder, 74 Mich. 202.
E. J. Hainer, also for defendant in error:
To persons who are lawfully upon the grounds of the company engaged in necessary business the company owes a duty of active vigilance. (Haley v. New York C. & H. R. R. Co., 7 Hun [N. Y.], 84; Barton v. New York C. & H. R. R. Co., 56 N.Y. 660; Goodfellow v. Boston, H. & E. R. Co., 106 Mass. 461; Schultz v. Chicago & N. W. R. Co., 44 Wis. 638; Newson v. New York C. & H. R. R. Co., 29 N.Y. 383; Emery v. Minneapolis Industrial Exposition, 57 N.W. [Minn.], 1132; Union P. R. Co. v. Sue, 25 Neb. 772; Cassida v. Oregon R. & N. Co., 14 Ore., 551; McKimble v. Boston & M. R. Co., 139 Mass. 542; Texas P. R. Co. v. Brown, 78 Tex. 397; Collins v. Toledo, A. A. & N. M. R. Co., 80 Mich. 390.)
The statutory requirement for signals at the crossings applies to persons whose property is lawfully on the highways or grounds of the company.
The omission to give the signals at crossing was negligence. (Wakefield v. Connecticut & P. R. R. Co., 37 Vt. 330; Hart v. Chicago, R. I. & P. R. Co., 56 Iowa 166; Western & A. R. Co. v. Jones, 65 Ga. 631; Lonergren v. Illinios C. R. Co. , 49 N.W. [Ia.], 852.)
The facts are stated by the commissioner.
Metcalf sued the railroad company to recover damages for injuries done to a team of mules, a wagon, and set of harness which had been struck by a train of the company near the station at Hampton. There was a verdict and judgment for the plaintiff for $ 365.42, to reverse which the railroad company prosecutes error.
The evidence upon which the verdict is evidently based tends to show that at Hampton the plaintiff in error's railroad passes through the village in an easterly and westerly course, nearly all of the inhabited portion of the village lying north of the tracks. There is a side track, with switches at either end, lying north of the main line. The station is situated between the main line and the side track at a point not far from the west switch. Two highways cross the tracks, one being Third street, or, as the witnesses designate it, Main street, about 275 feet east of the depot. The other, a section line road at the east boundary line of the village, about 1,000 feet from the depot. In addition to these crossings there are two others, one immediately east and one immediately west of the depot platforms. These crossings are not on public highways, but were placed by or at least with the consent of the railroad company for the purpose of affording access to its depot and platforms. The main line, the side track, and the depot platform outline a triangle west of the depot, and one of the crossings referred to affords an entrance to the space thus inclosed. The primary object of this crossing was to afford access for teams to the west platform. In unloading and loading cars standing on the side track to the west of the depot it is practicable either to drive a wagon north of the side track close to the cars or south of the side track by means of this crossing into the triangular space referred to. Metcalf owned a mill situated some distance south of the tracks. His manager had been notified that a car load of coal consigned to him had arrived, and a servant named Dixon was instructed to take the mules and wagon and unload this coal. The car stood upon the siding a short distance west of the depot. Dixon drove over the Main street crossing to the north side of the car and from that side took one wagon load of coal. Returning for the second load he testifies that he found the Main street crossing blocked by cars and therefore drove by the depot, and over what we have called the west crossing, into the triangular space, and approached the car from the south side. He applied the brake to the wagon,...
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