Hook v. Payne
| Decision Date | 13 November 1922 |
| Docket Number | 22125 |
| Citation | 190 N.W. 581,109 Neb. 252 |
| Parties | EDWIN G. HOOK, APPELLEE AND CROSS-APPELLANT, v. JOHN BARTON PAYNE, DIRECTOR GENERAL OF RAILROADS, APPELLANT: JOHN MINOGUE ET AL., CROSS-APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: A. M. POST, JUDGE. Affirmed.
AFFIRMED.
C. A Magaw, Thomas W. Bockes and Douglas F. Smith, for appellant.
Abbott Rohn & Robins, for appellee.
F Dolezal and Thomas F. Hamer, for cross-appellees.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., SHEPHERD, District Judge.
This is a railroad crossing accident case. The plaintiff was severely and permanently injured, and sued the company (per John Barton Payne, Director General) on the theory that the collision occurred by reason of its negligence, first, in that its engineer ran the crossing at a high and dangerous rate of speed without giving the statutory signals and without keeping a proper lookout; secondly, in that it permitted weeds to be upon its right of way at or near the crossing so as to prevent the plaintiff from a timely view of the train, and the engineer from a timely view of the plaintiff and his automobile; and, thirdly, in that another of the defendant's engineers, the engineer of a second train which was lying at the crossing, motioned plaintiff to come across. The accident happened at what is known as the Middaugh crossing, a short distance east of Ames, Nebraska, and in it plaintiff's car was struck by Union Pacific Flyer No. 1 westbound from Fremont. It is not disputed that the train was going 50 or 55 miles an hour. It commonly ran at that speed, and, being behind time upon this occasion, it was perhaps exceeding schedule. There is much dispute as to whether the whistle was blown and the bell rung, and also in regard to weeds and the degree to which they obscured the view. Plaintiff's witnesses say that they stood uncut on the right of way and along the right of way fence, and greatly interfered with seeing an approaching train. On the other hand, defendant attempts to show that they were negligible in effect. The road on which the crossing was located led from the Lincoln Highway, 90 or a 100 feet north, in an "S" shaped meander across the track. This meander had a considerable depression in it and was rough, rutted and hard to drive.
The defendant company claims that the verdict was not supported by the evidence, a contention which is somewhat helped by the fact that the jury, though finding against the company in the sum of nearly $ 15,000, returned a verdict in favor of both of said engineers who were joined as party defendants. It cites Zitnik v. Union P. R. Co., 91 Neb. 679, 136 N.W. 995, in support of this contention. That case was the subject of a vigorous dissent by Judges Reese and Fawcett; but, conceding the soundness of its majority opinion, the facts were so different that it can hardly have controlling application in the case at bar.
There was but one allegation of negligence pleaded, i. e., that the defendants negligently ran an engine over the plaintiff, and no issue of contributory negligence whatever. The rule of comparative negligence prescribed by section 8834, Comp. St. 1922, was therefore not involved. Here contributory negligence is made prominent in both pleadings and evidence, and the rule referred to is unquestionably invoked. Obviously, the jury might have properly found that there was negligence on the part of engineer Minogue--for instance, on account of his running the crossing so fast when his view of its approach from the north was partially obstructed--but not enough to amount to gross negligence in comparison with that of the plaintiff, and hence not enough to hold him liable. And yet, imputing such negligence on the part of its engineer to the company under the doctrine of respondeat superior, and finding, as it could have found, that the company was also primarily negligent in not cutting the weeds, the jury may have been convinced that the company was guilty of comparative gross negligence, and so have found against it. A number of similar combinations might be taken from the evidence to further illustrate. We do not view the Zitnik case as applicable to the different facts of this case.
Nor are we able, after a careful examination of the testimony, to say as a matter of law that the negative testimony of the plaintiff on the ringing of the bell and sounding of the whistle was not sufficient to contradict the positive testimony of the trainmen that these things were actually done, so as to make a question for the jury. Negative testimony sufficient to afford such contradiction should be from such knowledge through the medium of the senses as would enable the witness to speak affirmatively. But to speak affirmatively is not to speak infallibly. To give such interpretation to the word would be absurd. Infallibility is an attribute only of the Infinite, and no human knowledge derived from the senses can approach it. And the converse is equally true. Though the testimony be the most positive though the witness may say, "I did," the possibility of error still remains. The witness Frank Mundy was close at hand, interested in the operation of the passing train because it was new to him, looking and listening, observing its speed, standing at gaze to see what he could see in connection with it. He said all this on direct examination, and testified that the train did not whistle. On cross-examination he admitted the possibility that it may have whistled, but repeated...
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