Langenfeld v. Union Pacific Ry. Company

• Citation: 123 N.W. 1086,85 Neb. 527
• Decision Date: 14 December 1909
• Docket Number: 15,856
• Parties: GEORGE LANGENFELD, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT
• Court: Supreme Court of Nebraska

123 N.W. 1086

85 Neb. 527

GEORGE LANGENFELD, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT

No. 15,856

Supreme Court of Nebraska

December 14, 1909

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

N. H Loomis, Edson Rich, James E. Rait and E. H. Crocker, for appellant.

Weaver & Giller, contra.

OPINION

LETTON, J.

This is an action to recover for personal injuries. The plaintiff at the time of the accident was in the service of the defendant as a cook upon a dining car running from Omaha to the Pacific coast. About 4 o'clock of the afternoon of the day on which the accident occurred, a fellow employee, named Roberts, was sent to his house in Omaha to request him to assist in stocking a dining car for the road. The shortest way to the car was through the yards of the railroad company. Roberts and the plaintiff entered the yards near Seventeenth street, and from thence started to walk eastward between the eastbound and westbound main-line tracks along a smooth and well-beaten track toward where the dining car stood, Langenfeld being about six or seven feet behind Roberts. At this locality there are four parallel railroad tracks. The track is curved from Fourteenth to Seventeenth streets. There was a long string of freight cars standing upon the first track to their right. As they reached Fifteenth street going east, a passenger train belonging to the Illinois Central Railroad Company using the defendant's tracks approached upon the south main-line track, going about 15 or 20 miles an hour, which was the usual rate of speed at that point. It is admitted that there is about five feet clear space between the sides of passenger coaches on this track and box cars upon the next track. Plaintiff says he first saw the approaching train when it was about a half block away. He stepped over toward the box cars, and, as the train approached, stepped partially between the ends of two of them, having his feet outside of the rails, his side and head outside of the opening, but with his shoulder partly between the ends of the box car. The cars between which he stepped were out of repair and defective, in that the drawheads were broken and gone, and they were coupled together with chains which allowed the ends of the cars to come as close as six inches to each other and to draw apart about three feet. At the moment he placed his shoulder between the cars, an engine at a distance of over a block away, and around the curve, moved the line of cars, pinching the plaintiff's shoulder and inflicting upon him severe and permanent injuries. There is no evidence as to the presence or absence of signals when the cars were moved. As Roberts saw the train approaching, he stepped over to the box cars, leaned against the car, took hold of the bar or rail upon the side of the car which keeps the door in place, and held closely to it until the train had passed. A boy named Hourigan, who was employed as a call boy by the defendant, had ridden the switch engine to about Seventeenth street, when he got off and walked eastward between the same tracks as the plaintiff and Roberts, but about two or three car-lengths behind them. Like them, he first saw the Illinois Central train as it came around the curve, and, as it approached, was between it and the box cars in the same relative position as plaintiff and Roberts. He continued to walk on slowly between the passenger train and the box cars, until the train passed, in the same manner as before. Neither he nor Roberts were injured. He testifies that he saw Langenfeld put his shoulder between the cars just as the switch engine was backing down another string of cars to connect with these. He and Roberts both say that after they saw the Illinois Central train they had plenty of time to cross over to the north side of the south track, and both say they saw a switch engine at work near the west end of the box cars. Plaintiff's testimony shows that he was fully acquainted with the locus in quo, passed along there frequently, that his reason for walking between the two main-line tracks was that it was easier to walk there than on either side on account of there being no dirt, ashes and coal between these tracks, while there was upon and between the other tracks. He further shows that he knew that the track upon which the box cars were standing was a main-line track liable to be used at any time, and that the track upon which the Illinois Central train approached was also a main-line track used every day. There is little, if any, dispute in the testimony. The witnesses for the defendant, Hourigan and Roberts, testify substantially to the same state of facts as the plaintiff, except that they saw the switch engine at work, while plaintiff says he did not see it. At the close of the evidence the defendant moved for a directed verdict. This motion was overruled and the case submitted to a jury, which found for the plaintiff.

The defendant first contends that the court erred in refusing to submit to the jury the question whether or not the approaching Illinois Central train was the proximate cause of the injury. The petition alleged that the Illinois Central train approached at a rapid and unusual rate of speed, and without signals, but there was absolutely no evidence to support this allegation of the petition. The undisputed evidence shows that the train was approaching in the usual and ordinary manner, and at a rate of speed not unreasonable, under all the circumstances. The court instructed the jury that the sudden approach of that train was not the proximate cause of the injury, and should not be considered, except as a circumstance in explaining the conduct of the plaintiff and in determining whether he was guilty of contributory negligence in doing what he did. We think there was no error in this.

The court instructed the jury that they should consider the grounds of negligence named in the petition "which are: (1) Negligence in having the two defective cars fastened together in the manner in which they were; (2) the moving of said cars without any warning or signal"--and that, if they found defendant was guilty of such acts, or one of them, which was the proximate cause of plaintiff's injury, they should find for the plaintiff. Defendant contends that this was error, for the reason that there was no evidence that signals were not given before the cars were moved, and because it owed no duty to the plaintiff in respect to the defective bumpers. That plaintiff's occupation as a cook did not require him to enter the space between the cars, and there was no invitation, either expressed or implied, for him or any one else,...