Clinebell v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 22 November 1906
• Docket Number: 14,484
• Citation: 110 N.W. 347,77 Neb. 538
• Parties: NANCY E. CLINEBELL, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT. [*]
• Court: Nebraska Supreme Court

110 N.W. 347

77 Neb. 538

NANCY E. CLINEBELL, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT. ^[*]

No. 14,484

Supreme Court of Nebraska

November 22, 1906

APPEAL from the district court for Custer county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

J. W Deweese and F. E. Bishop, for appellant.

N. T Gadd, R. G. Moore and J. H. Broady, contra.

OLDHAM, C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This is an action for personal injuries, and is here for a second review by this court. At the first hearing a judgment in favor of the plaintiff was reversed because plaintiff's petition failed to allege any negligent act on the part of the defendant which was the proximate cause of the injuries. The opinion is reported in 5 Neb. (Unof.) 603. After the reversal of the judgment an amended petition was filed and issues joined, and on a trial to the court and jury plaintiff again secured a verdict and judgment, from which defendant appeals.

The only alleged error called to our attention in the brief of the appellant, which it will be necessary to consider, is as to the sufficiency of the testimony to support the judgment. There is no serious dispute as to the manner in which plaintiff's injuries were received. It appears that she was driving home with a gentle team in an open top buggy along a highway, which for some distance near the place of the accident runs nearly parallel to defendant's right of way. The general direction of the public highway is east and west, and the defendant's right of way crosses it at the place of the accident, running in a southeasterly direction. West of the crossing there is a cut about 300 feet long and about 7 feet deep. At the crossing the railroad embankment is about 12 feet high, with an approach leveled back about 37 feet, by which the wagon road crosses the track at right angles. Before reaching this approach the road follows a depression or gully north of the railroad and comes up an incline to the level of the embankment. Just as plaintiff had driven to the top of the incline to turn in on the approach to the crossing, a freight train came out from the mouth of the cut, and probably caused plaintiff's team to shy and frighten plaintiff so that she jumped or fell from the buggy and received the injuries complained of.

Plaintiff's account of the accident is rather incoherent, probably because she was dazed from fright, as appears from the following extract from the record: "Q. State to the jury what happened. A. Well, I was driving along and I was careful. I was careful and looking. I didn't think of the train or nothing coming for I couldn't see. It was my view right towards home to see a train, but I didn't see any. I supposed maybe it had gone down. I didn't know and I drove along there, didn't hear any sound or nothing and I drove up on the crossing, pretty near to the crossing, and the first thing I knew the horses threw their cars up, pricked their ears up, and that's all I know. I don't know how I got out or nothing. * * * Q. What happened afterwards, if you know? Where did you go? A. Well, when I come to myself the train was done gone, I discovered. I got up the best I can, I don't know how, but I was frightened, when I got up I saw my fingers was cut here and here (indicating), and I hobbled up and I discovered the box was loose from the buggy, and I didn't know what to do, anyway. I don't know how I got around, but I got around some way; and when I went to get the horses around and went to fastening up the tugs I was all this nervous. I didn't see any hurt, but I was bloody here, and I was just so nervous I couldn't fasten the tugs at all, but I got them fastened and I discovered the footsteps to get into the buggy, and I just threw my foot up on them, and I got into the buggy, and the team started off with me. When I got on the track everything was turned blind. I was turned blind. I couldn't see. I squatted right down in the buggy, and the team took me home. That is all I know about that." She also testified that she did not hear either the bell or the whistle before seeing the train. It was further established that when she got home she was in a dazed, partially unconscious condition, and bore evidence of severe and painful injuries from her fall. Numerous witnesses, at various distances ranging from a quarter to a half a mile from the railroad, testified that they heard neither the bell nor the whistle when the train passed the crossing. The only witnesses, other than the plaintiff, who saw the accident were two brakemen on defendant's train. The brakemen near the front end of the train testified that he saw...