Hicks v. Union Pacific Railroad Company
| Citation | 107 N.W. 798,76 Neb. 496 |
| Decision Date | 03 May 1906 |
| Docket Number | 14,209 |
| Parties | WILLIAM L. HICKS v. UNION PACIFIC RAILROAD COMPANY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dawson county: BRUNO O. HOSTETLER JUDGE. Reversed.
REVERSED.
H. M Sullivan and Warrington & Stewart, for plaintiff in error.
John N Baldwin, Edson Rich and John A. Sheean, contra.
AMES, C. OLDHAM and EPPERSON, CC., concur.
This is a proceeding in error to review a judgment for the defendant in an action to recover damages for a personal injury.
Hicks who lived some distance from Gothenburg, in this state, went to that village one morning, in company with three other persons, with the intent to travel thence upon one of the defendant's railway trains to the village of Lexington, situate some distance to the eastward. Having arrived at the former town, the four persons stopped for breakfast at a restaurant lying to the northward of the railway line and passenger station of the defendant company. Before the meal was through with, it was announced by some bystander that the train upon which the party desired to take passage had arrived and was about to leave. This train was standing on a side-track southward from the passenger station, the building being between it and the plaintiff, and between the train and the building was the main line or track of the company. When the announcement was made, the party left the restaurant hurriedly and ran toward the station. Practically simultaneously, a through train not scheduled to stop at the village approached at a rapid, but it does not appear at an unusual, rate of speed from the west and swept over the track between the station and the train upon the siding. The country in that neighborhood is a flat or level prairie, and from any point at or within 300 feet north of the station the train on its approach could have been seen for a distance of several miles, but the plaintiff did not take the precaution to look in that direction, because it seems, he did not apprehend the likelihood of the approach of a train from that direction at that time. The train on the side-track had arrived some five minutes before, and was emitting considerable noise, due to the "blowing off" or cleaning of the flues of the engine with blasts of steam, and his attention was not arrested by the sounding of the whistle and ringing of the bell of the incoming train, or by any other means, until he had run past the east end of the station and had crossed the main track, when his attention was attracted either by the hallooing of bystanders or by the noise of the incoming train, he is uncertain which, or perhaps by both, and he looked around and discovered the latter at a distance of about 400 feet. The incoming train was several minutes behind time, and in the usual course should have passed the station before the arrival of the standing train, but it does not appear that the plaintiff relied upon or was misled by that fact or that he knew of it. But the evidence shows that, at the time the plaintiff ran past the station and went upon the track, the conductor and a brakeman were standing on the north side of the main track waving their hands and hallooing so as to warn people of the approach of the train and the danger attendant thereon. Immediately upon his discovery of the situation, the plaintiff became aware of immediate peril and became confused and morally irresponsible. Whether he attempted to retrace his steps across the main track, or to retreat further toward the standing train, or whether he practically stood still, he does not remember and perhaps never distinctly knew. At all events he was beside the track when the moving train swept past and was struck by some of its projecting parts, receiving...
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