Hajsek v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 09 April 1903
• Docket Number: 12,634
• Citation: 94 N.W. 609,68 Neb. 539
• Parties: ANNA HAJSEK v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. [*]
• Court: Nebraska Supreme Court

94 N.W. 609

68 Neb. 539

ANNA HAJSEK v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. ^[*]

No. 12,634

Supreme Court of Nebraska

April 9, 1903

ERROR to the district court for Valley county: JOHN R. THOMPSON DISTRICT JUDGE. Reversed.

REVERSED AND REMANDED.

A Norman, Elliott J. Clements and Edwin M. Coffin, for plaintiff in error.

J. W Deweese, Alfonso M. Robbins and F. E. Bishop, contra.

AMES, C. DUFFIE and ALBERT, CC., concur.

OPINION

AMES, C.

The plaintiff, Anna Hajsek, and her husband, Vaclav, were farmers, living a short distance northwest of the village of Ord, in Valley county. On the 22d day of December, 1900, they drove to town with their family team, a span of horses, attached to a common lumber wagon, upon the box of which was a spring seat, upon which they sat. After spending the afternoon in the transaction of business with the village storekeepers, they started toward home at about six and a half o'clock in the evening. The night was cold, dark and stormy, the wind blowing fiercely from the northwest, and carrying considerable clouds of dust. The husband sat on the eastward end of the seat and drove the team. At a short -distance north of the village the road which these parties were traveling was crossed at nearly right angles, and at a distance of about three-quarters of a mile northwest of the village depot, by the track of the defendant railroad company. Westward from Ord the company operated two regular trains a day, the last of which, if running according to "schedule time," should have passed this intersection at 5 o'clock P. M. on the day in question, but without the knowledge of the plaintiff or her husband, it was an hour and forty minutes late. Just before reaching the crossing, going northward, there was a considerable depression in the common highway, and, beginning about two hundred feet eastward from the crossing, there was a cut of considerable length and from five to eight feet deep in the railroad grade. In daylight a person standing on the highway sixty feet south of the crossing could have seen an approaching train four hundred and fifty feet away, and at from thirty to forty feet from the crossing a train under like circumstances might have been seen nearly the whole distance to the station. Husband and wife both testify that when they were from thirty to forty steps--that is, from ninety to a hundred and twenty feet--south from the crossing they both looked eastward for an approaching train, but saw none, and afterwards took no precaution, and neither saw a train nor heard any signal until they were actually on the track, and a train was bearing close down upon them, which collided with the wagon, and threw the plaintiff to the ground, causing injuries to recover for which she brings this action. Upon this state of the evidence the court instructed the jury to return a verdict for the defendant, upon the ground that the plaintiff was, as a matter of law, guilty of such negligence as to preclude her from recovery, even if it should be found that the defendant was also negligent. Was this instruction right?

In seeking an answer to this question it is unnecessary to inquire what would have been the case if the action had been by the husband to recover for injuries to himself. Some argument is advanced in support of the proposition that inasmuch as the plaintiff mentioned the team and wagon as "ours," and because the expedition into the village was for the purpose of buying family supplies, the transaction should be regarded as a "joint enterprise," in which the...