Hair v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 07 May 1909
• Docket Number: 15,675
• Citation: 121 N.W. 439,84 Neb. 398
• Parties: JOSEPH E. HAIR, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

121 N.W. 439

84 Neb. 398

JOSEPH E. HAIR, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT

No. 15,675

Supreme Court of Nebraska

May 7, 1909

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

James E. Kelby, Arthur R. Wells and Frank E. Bishop, for appellant.

Wilmer B. Comstock and John R. Berry, contra.

OPINION

ROOT J.

Plaintiff recovered judgment for personal injuries, and defendant appeals.

There is but little conflict in the evidence. It may fairly be said that three lines of defendant's railway converge at Ashland, a city of about 1,500 inhabitants, where defendant maintains a switchyard about 400 feet wide and 1,500 feet in length. The greater part of Ashland lies west of and some distance from said switchyard. Main street is 100 feet in width, and crosses said yards obliquely at a point about midway between the ends thereof, and defendant's station, with the exception of the northwest corner of the building, is located in said street east of the main track and most of the side tracks, which run north and south. About a half mile north of the station the railway crosses Salt creek, and a half mile further the Platte river. None of the streets north of Main street are opened or traveled across defendant's railway, and people having occasion to cross the railway in said city, if they travel the highway, must come to Main street, and practically all of the individuals transacting business with defendant at Ashland are compelled to pass over the main track and side tracks to reach its agent or station. It also appears that for many years next preceding the date plaintiff was injured the public generally, with at least the tacit consent of defendant, has used the yard aforesaid as a footway in traveling north from said station to Salt creek and the Platte river.

1. Plaintiff in January, 1907, had been working in the neighborhood of Ashland, and on the first of February, in company with a friend, about 4 o'clock in the afternoon went to defendant's station, and there ascertained that the north and east-bound train would arrive about 7 o'clock. Plaintiff left his suit case with defendant's agent, went back up town for supper, and returned with said friend a few minutes too late for the Omaha passenger. He then inquired of said agent concerning the west-bound passenger train, and was told that it was due about midnight. Plaintiff testified that he had intended to travel on said train to Lincoln, where his parents resided, and that he remained in the waiting room of defendant's station for that purpose, but it does not appear that he informed any employee of the company of his intentions, nor did he purchase or have a ticket or any other evidence of a right to transportation over defendant's railway. About 9:30 o'clock a trainman came into the station, and in speaking to another person stated that a freight train would soon depart for Omaha. Plaintiff's friend went out of the station and north into the yards to ascertain if he could secure transportation on said freight, and plaintiff stepped outside of the station to bid his friend farewell and breathe the more invigorating air. The night was dark and cold, and snow was falling. While plaintiff was standing west of the station and upon its platform, his hat was blown from his head and northward through the yard. He looked each way and listened, and, not receiving warning of the approach of any car or locomotive, ran from 60 to 100 feet after his hat, and recovered it. The evidence does not inform us with much certainty whether plaintiff went outside of Main street or not, but the inference is that he did. In the meantime one of defendant's locomotives was backing a string of freight cars, at the rate of 10 miles an hour, south from the north part of the yard. The car nearest to plaintiff was a flat car. No warning by way of sound, light or person was given of the approach of the cars. As soon as plaintiff became aware of the movement of the cars, he attempted to get out of their way, but his foot was caught and crushed by the wheels of said flat car. The evidence shows without dispute that it was the custom of defendant when backing cars through said yard to station a brakeman upon the right-hand side of the rear car and to maintain a light thereon. Section 104, ch. 16, Comp. St. 1907, charged defendant with the duty of giving warning, by sounding...