Chicago, Burlington & Quincy Railway Company v. Mann

• Decision Date: 21 March 1907
• Docket Number: 14,248
• Citation: 111 N.W. 379,78 Neb. 541
• Parties: CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY v. GUSTAVE A. MANN
• Court: Nebraska Supreme Court

111 N.W. 379

78 Neb. 541

CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY v. GUSTAVE A. MANN

No. 14,248

Supreme Court of Nebraska

March 21, 1907

ERROR to the district court for Adams county: ED L. ADAMS, JUDGE. Reversed.

REVERSED.

John C Stevens, J. W. Deweese and F. E. Bishop, for plaintiff in error.

Tibbets Morey & Fuller, contra.

OPINION

BARNES, J.

On the night of February 18, 1904, Gustave A. Mann, plaintiff below fell into an ash pit between the rails of the railroad track of the defendant company while passing from the depot to the caboose of a freight train in which he was about to take passage from the city of Minden to his home in the city of Hastings. The result was a broken leg, to recover for which he brought this action against the company. Judgment being entered in his favor, the railroad company has taken error to this court.

The material facts from which the question of the liability of the railroad company must be determined are the following: Mann, with four companions had been attending a shooting tournament at Minden, and went to the station in the evening in order to take a freight train to his home in Hastings. He was traveling agent for a brewing company, and had occasion in the course of his business to make use of the freight trains of the defendant company. For this purpose he procured a permit from the railroad officials authorizing him to ride upon trains which did not carry passengers, except by special permission. The permit is in the following language: "Burlington & Missouri River R. R. Co. in Neb. (Chicago, Burlington & Quincy Ry. Co. Lessee.) Freight Train Permit. No. A 1027. 1904. Conductors, Freight Trains: When presented with regular transportation this will be your authority to carry Mr. G. A. Mann, Representing Dick Bros., between points where your train stops for other business. This permit is subject to conditions printed on back, which must be signed in ink by the person named, but does not authorize agents to flag freight trains. Good until December 31, 1904, unless revoked. G. W. Holdrege, General Manager. A. B. Smith, Countersigned. 1904. Nontransferable. This permit is granted at the special request of, and accepted by, the undersigned upon the following conditions, it being understood that greater danger attaches to riding on freight trains than on a passenger train: I hereby agree to assume all risk of accident to my person and loss or damage to my personal effects, and also to board and alight from freight trains only at points where such trains may be stopped for the convenience of the railway company. It is understood that freight trains do not as a rule start from or stop at stations with the caboose or coach at the station platform. Baggage will only be accepted for transportation, under check, on freight trains when there is room in the ordinary equipment of such trains, when baggage may be loaded or unloaded from or to platform without requiring special stop, and when passenger with proper ticket travels on same train. G. A. Mann. (Sign in ink.)"

From the fact that the freight train which the parties were to take was late, they had to remain some time at the defendant's station. The train, on its arrival, stopped upon the first track north of the main track of defendant's road, the space between the two lines of track being about eight feet. The engine of the freight train was east of the depot, and the caboose several hundred yards to the west thereof. The train arrived in Minden about 9 o'clock P. M., the night being very dark. Some time after its arrival it was suggested by a Mr. Barnhardt, one of Mann's companions, that it would be well to go down in the yard and board the caboose, as it might not stop at the depot. The entire party then started for the caboose, going along the south side of the freight train, which consisted of about sixty cars. They traveled in the space between the north and south tracks until they came to a pile of cinders. They then turned to the south between the rails of the main track, and three of the parties, including Mann, fell or stepped into the ash pit above mentioned. This pit was situated between the rails of the main track, was about ten feet long and twelve or fourteen inches in depth, and was used for receiving the cinders dumped from the company's engines while taking water at the tank, which stood near the excavation. It is conceded that the train which Mann was attempting to board was a freight train which carried passengers only by special permission of the company, and that the four persons accompanying him had to obtain special permits to ride thereon.

At the request of the plaintiff below, the court instructed the jury as follows: "The jury are instructed that when the carrier of passengers by railroad does not receive passengers into the car at the platform erected for that purpose, but suffers passengers to enter at out of way places, it is its duty to use its utmost care in preventing accidents to passengers while so entering, and to provide for them a safe and convenient way and manner of access to the train, and to prevent, so far as possible, the interposition of any obstacles which would necessarily impede or...