Crabtree v. Mo. Pac. R. Co.
| Decision Date | 10 February 1910 |
| Docket Number | No. 15,878.,15,878. |
| Citation | 124 N.W. 932,86 Neb. 33 |
| Parties | CRABTREE v. MISSOURI PAC. R. CO. |
| Court | Nebraska Supreme Court |
Where different minds may reasonably draw different inferences as to whether certain facts establish negligence or contributory negligence, the question of negligence must be left to the jury.
A parent may recover for pecuniary loss which it is reasonably probable he may sustain by reason of the death by wrongful act of his minor child, and, in ascertaining the amount of such pecuniary loss, it is not erroneous to receive evidence of the circumstances of the father and of the age and condition of his family. Chicago, R. I. & P. R. Co. v. Hambel, 2 Neb. (Unof.) 607, 89 N. W. 643;Chicago, St. P., M. & O. R. Co. v. Lagerkrans, 65 Neb. 566, 91 N W. 358, 95 N. W. 2, distinguished.
An instruction by which the jury was sought to be directed that the evidence of certain witnesses was entitled to greater weight than that of others concerning a disputed fact invades the province of the jury, is erroneous, and was properly refused.
Where only a portion of the facts involved in the determination of issues of negligence and contributory negligence was specially found by a jury, and a judgment is moved for upon such special findings upon the ground that they are inconsistent with the general verdict, the court is entitled to consider all the other facts established by the evidence, and if, taking the special findings in connection with the other facts proved, they are consistent with the general verdict, such verdict will not be disturbed.
Special findings examined, and held not inconsistent with the general verdict, in view of the proof made under the issues.
The duty of a traveler upon a public highway approaching a railroad crossing is to exercise ordinary care. If he goes upon a railroad crossing without first looking and listening for the approach of a train, without a reasonable excuse therefor, and such failure to look and listen contributes to his injury, he cannot recover.
If the view of an approaching train is obstructed by cars near the crossing, if the traveler's attention is distracted by moving trains upon other tracks, or by other sounds or sights, it is a question for the jury as to whether or not the traveler has exercised ordinary care.
Where a bright intelligent girl nine years of age was killed at a railroad crossing over a public street, the jury were entitled to consider the age of the child in determining whether or not she used ordinary care under the circumstances, and a special finding that she was old enough to know the dangers of the crossing is not inconsistent with a verdict based upon the thought that she used such care as might ordinarily be expected from such a child. What might be the exercise of ordinary care in a child of nine years of age measured by its experience and reasoning powers might constitute gross negligence on the part of a person of mature judgment.
Remarks of counsel set forth in the opinion held not prejudicial to defendant.
Appeal from District Court, Douglas County; Day, Judge.
Action by William L. Crabtree, administrator of Bessie M. Stevens, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.James W. Orr, B. P. Waggoner, and Geo. G. Orr, for appellant.
W. W. Slabaugh, S. I. Gordon, and Charles E. Smith, for appellee.
This action was brought by William L. Crabtree, administrator of the estate of Bessie M. Stevens, deceased, to recover damages suffered by the next of kin by reason of the killing of plaintiff's intestate. The accident occurred on April 11, 1905, between 4 and 5 o'clock p. m., at a point where the railroad tracks of defendant cross Ohio street in the city of Omaha. The railroad runs nearly north and south, and it is intersected at right angles by Ohio street. The railroad tracks are situated in the Missouri river bottoms a short distance east of a steep hill or bluff which forms the side of the valley. From the point where Ohio street reaches the escarpment there are three flights of steps terminating at a point about 45 feet west of the first railroad track. There are about 25 or 30 dwellings on the north side, and 35 buildings on the south side of Ohio street east of the tracks, and about 200 people live in the immediate neighborhood. There is no other street across the tracks leading to the city nearer than three or four blocks to the north or five or six blocks to the south of Ohio street, so that people working in the city and school children use the path in the street leading from the east of the tracks to the foot of the steps as a main thoroughfare, although the street is not capable of use by vehicles on account of the steepness of the bluff. Directly east, contiguous and parallel to the tracks of the defendant railroad were tracks of the Chicago, St. P., M. & O. Railway. The roundhouses of both railroads were some distance north of Ohio street, and the passenger stations of both were at a considerable distance south, so that it was necessary for engines going from the roundhouse to the station to cross this street. At this point the defendant had four tracks. The two farthest west were known as elevator tracks, there being an elevator between them about 125 feet north of Ohio street. The next track east was the main line track, and it was upon, or close to, this track that the accident happened. At the time of the accident some freight cars were standing on the second track from the west at a distance of about 10 feet north of the street. There were also cars standing on the same track south of the street at a distance of about 12 or 15 feet. The plaintiff's intestate, Bessie M. Stevens, was a bright, intelligent little girl of about nine years of age. Her father lived on the north side of Ohio street, a short distance east of the railway tracks. On the afternoon of the accident she had been sent by her mother to a grocery store west of the stairs for some groceries and was returning carrying them in a basket. When she reached the foot of the stairs she met another little girl. She stopped and talked with her a few minutes, then started eastward across the tracks. The girl who met her, Eleanor Anderson, who was then about 11 years of age, testifies that a few moments after Bessie had started east she looked around, and just as she looked saw her struck and knocked down by an engine which was running backward on the roundhouse track, at the rate of 12 or 14 miles an hour, and with no bell or whistle sounding. She testifies that from where Bessie and she were standing it was impossible to see the engine on account of the box cars on the elevator track, and that at the time Bessie was struck, a train with passenger coaches on the Chicago, St. P., M. & O. Railway (hereafter referred to as the Omaha road) was running across Ohio street, and was just south of the street, and that when struck Bessie was looking in the direction of that train. This account of the accident is corroborated by a number of other witnesses, whose evidence it would serve no useful purpose to detail at length. It is also shown that a person standing in the middle of the main line track looking to the north could have an unobstructed view for nearly half a mile, and would have been able to see at such a distance moving engines or cars upon either the main line or roundhouse tracks. The little girl was struck on the left side of her head by the beam on the rear end of the tank of the engine, which, as the engine was running backward, was in front. It is 45 feet from the foot of the steps to the first track, 15 feet from that to the second, 9 feet from the second to the third, and 11 feet from the third to the fourth.
On the part of the defendant it is shown that the engine was a large freight engine with a high tank which was being operated from the roundhouse to the passenger station by two employés, the hostler and hostler's helper. The hostler testifies that he was in charge of the engine; that his position was upon the east side; that he could see the rail upon his side of the track immediately behind the tank, and could see the other rail a car length away at an angle; that the tank was high and square and he could not see over it; that the first thing that attracted his attention as they went south was that his helper called to him; that from his gestures and call he supposed something was the matter and at once threw the throttle back and whistled twice. The engine stopped at a distance of 90 feet south of Ohio street. The witness says he was going about 6 or 7 miles an hour, and that he could not have stopped the engine any quicker. The helper testifies that after the engine was about halfway down from the next street north he saw the little girl come out from behind the elevator on Ohio street; that she was standing in the middle of the main line track; that when she stopped on the main line track they were about four engine lengths away, and that when they got about an engine length away, and when he was ringing the bell, he saw her move, and called to the hostler who shut off the engine and applied the air brake; that the little girl was looking southwest when she started towards the engine, and that she approached the track with her back partly toward it. He also says that the engine was moving obout 6 or 7 miles an hour. He testifies that the engine whistled about 4 or 5 feet from her, and just before she was struck; that he yelled at her just after the whistle was blown. He also says that he remembers a train being on the Omaha track southeast of there. Another witness for defendant was a switchman in the employ of the Omaha road who testifies that at the time of the accident he was standing southeast of the crossing throwing the switches on that road to allow a train to back down from the roundhouse to the station. He testifies that he saw the little...
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