Kreycik v. Chicago & North-Western Railway Co.
| Decision Date | 23 June 1914 |
| Docket Number | 17,771 |
| Citation | 148 N.W. 82,96 Neb. 412 |
| Parties | JOSEPH P. KREYCIK, APPELLEE, v. CHICAGO & NORTH-WESTERN RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cherry county: WILLIAM H WESTOVER, JUDGE. Affirmed.
AFFIRMED.
A. A McLaughlin, Edgar R. Hart and Wymer Dressler, for appellant.
M. F Harrington and John M. Tucker, contra.
Plaintiff is a ranchman owning a pasture adjoining the right of way of the defendant railroad company on the south. A private crossing of the railroad with gates on each side of the right of way opened from the pasture. On March 4, 1910, plaintiff had between 300 and 400 head of cattle in the pasture. In the afternoon of that day a number of the cattle passed upon the railroad track through the gate on the south side of the right of way, and nine were killed by a train. This action is to recover damages for the loss of the cattle.
The petition alleges that defendant for a long time before March 4, 1910, had kept and maintained this gate "in a shaky, loose, wobbly, unfastened, unsafe" condition, and "in such condition as not to resist the pushing or rubbing of cattle," and that the cattle killed pushed against the gate and passed through an opening made between the gate and post. The answer is a general denial.
The proof shows that the gate was old and somewhat rickety. It was not hung on hinges, but was held up by two posts at each side of the opening, and was opened by being pulled from between the posts at one end and then swung round. Several witnesses for plaintiff testify that it could be sprung from between the posts by pushing against it; while defendant's witnesses say that, while it had been broken and repaired, the gate was in fairly good condition. Two sectionmen who were on the train which struck the cattle say the gate was standing open, leaving a space of about four feet between the gate and the post, and that it was opened into the pasture. All witnesses who were present that evening and the next morning say that the ground was soft and muddy, and there were no tracks of any kind except cattle tracks at or near this gate, and that there were no wheel tracks, horse tracks, or human tracks near the corresponding gate on the north side of the track. It was shown that hunters and others sometimes passed through these gates with vehicles or on horseback, but there is nothing to show that any one had passed that day or had been seen in the vicinity. It was also shown that at this season of the year cattle are very apt to rub and push against gates, posts, and other structures. At the conclusion of plaintiff's evidence defendant moved for a directed verdict. This should have been sustained; as at that time the evidence was clearly insufficient to sustain a verdict. Defendant then produced witnesses. During their examination proof was made for the first time of the absence of any but cattle tracks at or near the gates. This was reinforced by the evidence of plaintiff when on the stand in rebuttal.
Defendant insists that the evidence is not sufficient to support a verdict, and that the court erred in giving certain instructions and in refusing others tendered. The law of the case was practically submitted in two instructions, Nos. 4 and 5. The substance of No. 4 is that...
To continue reading
Request your trial