Craig v. Chicago, St. Paul, Minneapolis & Omaha Railroad Company
| Decision Date | 18 December 1914 |
| Docket Number | 17,877 |
| Citation | 150 N.W. 374,97 Neb. 426 |
| Parties | ALVARADO W. CRAIG, ADMINISTRATOR, APPELLEE, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILROAD COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.
REVERSED.
Brome & Brome, James B. Sheean and George W. Peterson, for appellants.
Sullivan & Rait and W. T. Thompson, contra.
Plaintiff's intestate was killed while driving over a railroad crossing in the village of Lyons. This action is for damages for the wrongful death of the deceased.
In substance, the petition alleges that there is a mill and elevator to the west of the railroad track in Lyons, Nebraska, near Main street; that a large number of teams are constantly passing to and fro over the railroad crossing at that point; that on the 11th day of May, 1911, the plaintiff's son, Zell Craig, a young man about 18 years of age, and Catherine Craig, plaintiff's wife, while driving from the mill across the track, were struck and killed by a passenger train, of which defendant Murphy was the engineer; that the view was obstructed by buildings and erections close to the track, and there was no flagman stationed or signs given at the crossing. The negligence charged is that the defendant ran the train at a high, dangerous and unusual rate of speed, failure to ring a bell or blow the whistle when the train was at least 80 rods from the crossing, and to keep the same ringing or whistling until the crossing was passed, and the failure to stop the train after defendant railroad's servants knew that the team was upon the crossing.
The answer denies negligence, and pleads contributory negligence. It also pleads by way of counterclaim that, by the carelessness of the Craigs, the train was derailed and damages inflicted to the track, the cars and the engine in the sum of $ 1,015. A similar answer was filed by the engineer of the train, except that in his counter-claim he alleges personal injuries to himself caused by the derailment. Plaintiff had judgment against both defendants for $ 7,000, and defendants appeal.
The undisputed facts or those clearly proved will first be stated, and the testimony as to other material matters, narrated, omitting matter covered by the general statement.
Lyons is a village with a population of about 1,000 people. Main street, shown upon the accompanying plat, is the business street of the town, and the larger part of the business is transacted in the two blocks immediately east of the railroad crossing. The railroad station is 1,480 feet south of the crossing, and there is a slight upgrade from the crossing to the station. From 150 to 400 people cross the tracks at this crossing every day; a large number of them going to the mill, elevator and other buildings to the west of the track. A continuation of the street is also the main highway to the well-settled farming country lying to the west of town. The mill and elevator are separated by a distance of from 20 to 23 feet, and this is narrowed by a platform on the side of the mill, used for loading and unloading and for access to the building. Both the mill and elevator are operated by water power from the Logan river; the dam being close to the mill. There is a direct conflict in the testimony as to whether a box car was standing on the side-track near the south end of the elevator, but the jury evidently found that the car was there and obstructed the view. From the center of the main line to the center of the side-track at the crossing is 14 feet, 10 inches. The ground slopes upward slightly from the driveway between the mill and elevator to the railway. Parties desiring to load or unload at the mill would drive north between the mill and elevator, but in order to return were compelled to drive beyond the mill and make a sharp turn, coming back through the driveway by which they entered. There is a sharp curve in the railroad north of the elevator, so that looking north from the mill platform, and from the turning place still further north, a view of the railroad can be had extending to the northwest for more than half a mile, and the view of the track from immediately west of the crossing is cut off by the elevator. There is a dam with an eight-foot fall close by the mill on the west, and this and the machinery of the mill made the locality of the driveway more or less noisy. On the morning of the accident Zell Craig, accompanied by his mother, Catherine Craig, drove to the mill with a grist, unloaded it upon the platform, drove north to the turn, and came back through the driveway. There was a strong wind blowing, but there is a conflict as to whether it was from the north or south. There is testimony that one of the horses that Craig was driving was a broncho which was not well broken, but this we think is not material, since there is no proof of fractious or unruly conduct on the part of this animal at this time. The estimates as to the speed of the train vary from 25 to 35 miles an hour, but we are satisfied from the proofs that it was running at least at the rate of 30 miles as it approached the crossing. The proof is that the statutory signals were given, and the court so instructed the jury.
[SEE DIAGRAM IN ORIGINAL]
The testimony on behalf of plaintiff as to other material facts is substantially as follows: One witness, who was in the blacksmith shop in the center of the block east of the crossing, on the north side of the street, said that he heard the train whistle for the crossing and afterwards give a danger whistle before the team was struck, and that he did not see the team or wagon until after the collision.
The next witness was the plaintiff, who testified as to local surroundings, the age of his son, and his ability to labor. He also gave facts as to the other members of his family and the pecuniary loss sustained by the death. The third witness, who stood at the door of the blacksmith shop, testified that he saw the team come up over the railroad, and saw the wagon cut in two by the train; that at the time the team was being driven over the crossing it was "just coming over in a little trot."
On the part of the defendants, the miller, who helped Craig to unload the grist, testified that while he was on the mill platform, and after Craig had started the team north in order to turn, he heard the train coming south, whistle at the Logan bridge (which is half a mile north), and afterwards heard it whistle again for the crossing; that Craig turned and drove back between the mill and elevator with the team walking; that after he passed the mill, and just after he began to make the turn to the crossing, he used his whip on the horses, and continued to use it until he was struck by the engine. He also testified that there were no obstructions to the view north of the mill from the turn except a little clump of trees half way between the Logan bridge and the trestle bridge near the whistling post.
One Behn, who was driving a team for the mill-owner, was leaving the mill for the crossing just as Craig drove into the driveway. The witness drove his team to a point about 30 feet west of the side-track, when he heard the whistle and stopped. He waited for the train to pass. He testified that he saw Craig start to whip his horses as he turned to go up to the crossing; the horses were trotting; that he saw him look to the north as he went up the grade onto the crossing at about the switch track. The witness shouted as loudly as he could to him to stop as he passed him. Craig was then about 8 or 10 feet away from him. He did not see the train until it was east of the elevator.
Mr. Lyons, proprietor of the mill, was in the mill near an open window in the southeast corner. He testifies that he saw the team as it came south of the mill. As it approached the crossing Craig drove faster. He turned his head to the north as he cleared the side track, and as he...
To continue reading
Request your trial