Chicago, Burlington & Quincy Railway Company v. Schwanenfeldt

• Decision Date: 22 November 1905
• Docket Number: 14,005
• Citation: 105 N.W. 1101,75 Neb. 80
• Parties: CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY v. EMIL SCHWANENFELDT
• Court: Nebraska Supreme Court

105 N.W. 1101

75 Neb. 80

CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY v. EMIL SCHWANENFELDT

No. 14,005

Supreme Court of Nebraska

November 22, 1905

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Reversed.

REVERSED.

J. W Deweese and Frank E. Bishop, for plaintiff in error.

A. W Field, contra.

JACKSON, C. DUFFIE and ALBERT, CC., concur.

OPINION

JACKSON, C.

The plaintiff in the trial court recovered judgment against the defendant in an action for damages on account of a personal injury, which it was alleged he sustained because of the negligent acts of the defendant. At the close of the plaintiff's evidence the defendant moved for a directed verdict. The motion was denied and the defendant offered no evidence. From the judgment the defendant prosecutes error, alleging insufficiency of the evidence to sustain the verdict and judgment.

The facts disclosed by the evidence are: That the defendant owned and used a railway track along Eighth street in the city of Lincoln, a street extending from the south to the north along the east side of block 52. The track in question was a switch put in for the accommodation of wholesale houses, and was connected with the company's yards at the south end only, so that the only means of access to the track was from the south. At the point where the accident occurred the west rail of the railway track was 17 feet east of the lot line. An alley 16 feet in width extends east and west through block 52, and is paved with stone. On the east side of the block, and immediately south of the alley, a lumber yard, inclosed with a high board fence, with an office building at the east end of the lot, obstructs the view, so that it would be impossible for a person passing through the alley from the west to the east to see a train approaching from the south, except at a point at or near the east end of the alley where it intersects Eighth street. Between the buildings on the east side of block 52 and the railway track there is nothing to obstruct the view to the south, except some telegraph poles. The plaintiff was the driver of a butcher's delivery wagon, drawn by a single horse. The seat on the wagon was at the front, flush with the end of the box, so that the driver occupying the seat would sit with his feet resting on the foot-board extending out from the bottom of the box. The plaintiff was hauling meat from the supply house of a packing establishment, and, in company with a companion, who occupied the seat on the wagon with him, drove through this alley from the west to the east onto the railway track, where his wagon was struck by a freight car then being moved from the south to the north, and as a result he sustained injuries, on account of which the action was brought. The horse was gentle, and being driven by the plaintiff.

The plaintiff, as a witness in his own behalf, testified that he had driven over that route almost every day for several months. He knew the location of the railway track; the location of the buildings; that it was his usual way to come back from the meat house; that the horse was trotting up the alley, and continued to trot in the same way until he, the plaintiff, saw the cars. As to when he saw the train he testified as follows: "Q. Tell the jury when you first saw the train. A. When I first saw it, it was right about two feet, I guess, from me. Q. You don't know what it was called your attention to the cars? A. No, sir; I don't know as to what it was exactly--the rattling of them I guess." Questioned as to an effort to jump, he answered "I looked at the cars, and if I had jumped on my side I would have jumped under the wheels of the car." This testimony showed to his sense of hearing and...