Hendricks v. Fremont, E. & M. V. R. Co.

• Decision Date: 08 January 1903
• Citation: 67 Neb. 120,93 N.W. 141
• Court: Nebraska Supreme Court
• Parties: HENDRICKS v. FREMONT, E. & M. V. R. CO.

67 Neb. 120

93 N.W. 141

HENDRICKS

v.FREMONT, E. & M. V. R. CO.

Supreme Court of Nebraska.

Jan. 8, 1903.

Syllabus by the Court.

1. A railroad company is not liable for injuries caused by a team taking fright at the ordinary operation of a train upon its road. Railroad Co. v. Roberts (Neb.) 91 N. W. 707.

Commissioners' opinion. Department No. 3. Error to district court, Saunders county; Sornborger, Judge.

Action by Bertin E. Hendricks, as administrator of the estate of Jerry H. Reigel, deceased, against the Fremont, Elkhorn & Missouri Valley Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.M. Newman and Samuel J. Tuttle, for plaintiff in error.

Benjamin T. White, James B. Sheehan, and Good & Slama, for defendant in error.

DUFFIE, C.

Jerry H. Reigel was killed on the 17th of March, 1899; being thrown from the seat of his wagon in a runaway caused by his team being frightened by the train of the defendant in error. Hendricks, executor of his estate, brought this action to recover damages on account of his death. After the plaintiff had introduced his evidence and rested, the court gave a peremptoryinstruction to the jury to return a verdict for the defendant. The plaintiff brings the case to this court on error, claiming that said instruction was unwarranted.

The facts disclosed by the record are that on the day of the accident the south-bound passenger train of the defendant in error, due at Wahoo about 5 o'clock p. m., did not arrive at the station until about 6 p. m.; that about the time it pulled out from the station, going south, the defendant was driving across its tracks some 340 feet from the depot; that the team took fright at the train,--throwing Reigel from his seat, and causing his death. Reigel was employed by the Standard Oil Company to distribute oil through Saunders county. He usually returned home about 5 o'clock in the afternoon, and it was his custom to wait, before crossing the track of the defendant company, until the 5 o'clock train had left the station. The evidence further tends to show that the station, and the train standing at the station, were obstructed from the view of a person approaching the crossing from the east until within some 10 or 12 feet of the track. The negligence charged against the company is that it did not ring the bell or sound the whistle of the engine, and that, Reigel's view of the train being obstructed, he drove upon the track, and the approaching train frightened his team and caused it to run away, thus causing his death.

While there is no direct evidence in the record that the crossing at which the team became frightened was a public street or highway, it was spoken of as “Ninth Street,” and, for the purposes of this case, we may assume...