Eggeling v. Chicago, Rock Island & Pacific Railway Company
| Decision Date | 31 December 1929 |
| Docket Number | 26914 |
| Parties | MARTHA A. EGGELING, ADMINISTRATRIX, APPELLEE, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: MASON WHEELER JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
The presumption of due care arising out of the natural instinct of self-preservation is not evidence, but a mere rule of law and obtains only in the absence of direct or circumstantial evidence justifying reasonable inferences one way or another upon that subject; when such evidence is produced the presumption disappears and is not entitled to be considered.
One driving toward a railroad track with horses and wagon over a road along which exist obstructions which partially shut off a view of an oncoming train must stop, look, and listen before attempting to cross, and if a clear view of sufficient of the track cannot be had by remaining in the wagon, if practicable he should dismount if an adequate view of the track could be obtained only by so doing.
No recovery can be had by one who suffers harm by crossing a railroad track recklessly or by failing, without reasonable excuse, before crossing to take the precautions which the conditions indicate are available to him. Such conduct is negligence more than slight which under the comparative negligence law bars recovery.
Evidence examined, and held that under the circumstances shown no reasonable excuse for a failure to stop, look, and listen is presented.
Additional Syllabus by Editorial Staff.
Appeal from District Court, Lancaster County; Wheeler, Judge.
Action by Martha A. Eggeling, administratrix of the estate of Frank R. Eggeling, deceased, against the Chicago, Rock Island & Pacific Railway Company, and another. Judgment for plaintiff, and defendants appeal. Reversed, with directions.
E. P. Holmes and Guy C. Chambers, for appellants.
Burkett, Wilson, Brown & Wilson, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and DAY, JJ., and THOMPSON, District Judge.
Action by Martha A. Eggeling, Administratrix of the Estate of Frank R. Eggeling, deceased, against the Chicago, Rock Island & Pacific Railway Company to recover damages for Eggeling's death occurring at a highway crossing near the town of Rokeby, Nebraska, at about 4 o'clock in the afternoon of July 28, 1927. The engineer was joined as a party defendant. Judgment for plaintiff was entered on a verdict by the jury. The defendants appeal.
Eggeling had been hauling grain to an elevator located on a side-track north and east of the highway crossing. He was familiar with the crossing. His farm was nearby. Rokeby was his trading point. The crossing, which was over the main track of the railroad, was the one customarily used by him to reach the town. On the day of the accident he had hauled five wagon loads of grain over this crossing to the elevator. At the time of the accident Eggeling was returning with an empty wagon from the elevator. The tracks are approximately at right angles to the highway. The highway at this point lies east and west. Eggeling was traveling westward. The train was coming from the north. The collision took place when the wagon was on the tracks of the oncoming train. The horses were in the clear. To one coming from the east the view to the northward, the direction from which the train was coming, was considerably obstructed. The obstructions consisted of a hedge and weeds about 75 feet east and north of the crossing, the depot about 78 feet north of the crossing and near the tracks, two small buildings north and east of the depot, and a string of freight cars on a side-track east of these buildings. The track curved slightly eastward; but, since the curve began at a point about 325 feet north of the crossing, the curved condition could not enter as a factor in what transpired. To the northwest, part of the tracks could be seen from the highway at various distances ranging from 60 feet to within 22 feet east of the crossing, disclosing the main track at points, respectively, 1,037 feet, 900 feet, 827 feet, and 340 feet north of the crossing. After the 22-foot point, the prospect along the tracks and past the obstructions was an ever widening and lengthening one. Practically undisputed testimony shows that to the north the west rail could be seen from the highway at the following varying distances: 22 feet east of the east rail, 340 feet; 20 feet east, 440 feet; 15 feet east, 780 feet; and along the highway 10 feet from the east rail the west rail of the main track could be seen 1,210 feet north. The accuracy of these distances is strongly attacked by the plaintiff, not so much by testimony, but by a series of mathematical calculations by which results of shorter distances are reached. However, in such calculations the plaintiff failed to consider that the highway describes a slightly acute angle and that the distance along the highway to the track is greater than the distance to the nearest point. Thus, one standing on the highway is actually nearer the track than the distance from the same point to the track along the highway. Even a few inches make a material difference in such calculations. At any rate the camera views furnish a reliable basis of corroboration for the foregoing measurements; and the figures given above may be accepted as substantially correct.
The train was proceeding at 40 miles an hour; Eggeling at 3 miles an hour. Thus, multiplying the speed by 1 1/2, the train was proceeding about 60 feet a second while Eggeling was traveling about 4 1/2 feet a second. It would require 4 seconds for Eggeling to travel 18 feet. So, when Eggeling was 18 feet from the track, the train was about 240 feet from the crossing. Twenty feet from the crossing it was possible for Eggeling to see up the track 440 feet. At 22 feet away he had a view of 340 feet, a greater distance up the track than the engine would be at that moment. At the speed at which Eggeling was traveling, at all the points where even only momentary views were possible, some portion of the train would have been visible to him. Thus, it is apparent that if Eggeling had looked at any time after passing the 22-foot point, or at the earlier places, he would have seen the train, and that he either did not look or proceeded to cross the tracks in reckless disregard of what he saw.
It may be true that the bell was not rung nor the whistle blown although evidence to the contrary is substantial; but applying the oft repeated rule that the evidence should be considered in a light most favorable to this appellee, yet Eggeling was bound to do something in his own behalf. He may not, in reckless...
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Eggeling v. Chi., R. I. & P. Ry. Co.
...119 Neb. 229228 N.W. 361EGGELINGv.CHICAGO, R. I. & P. RY. CO. ET AL.No. 26914.Supreme Court ... Eggeling, deceased, against the Chicago, Rock Island & Pacific Railway Company, and another ... ...