Luedeke v. Chicago & Northwestern Railway Company
| Decision Date | 09 July 1930 |
| Docket Number | 27295 |
| Citation | 231 N.W. 695,120 Neb. 124 |
| Parties | CHARLES LUEDEKE, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Stanton county: CHARLES H STEWART, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
The right of way is the property of a railroad and the use of such property is within its control, except in a way incidental to its function as a common carrier in which the public has an interest.
A railroad company, being under no legal obligation to grant to any one the privilege of constructing and operating a building or equipment upon its right of way, may grant the privilege by contract exempting it from damage resulting from its negligence associated with such construction and operation.
A provision in a lease permitting the installation of an unloading device upon a railroad right of way, which exempts the railroad from liability for damages resulting from the installation, maintenance, presence or use of such device, does not free the railroad from liability in a suit to recover damages directly resulting from the negligence of the company in unreasonably blocking a crossing, thereby delaying the fire department on its way to a fire.
A railroad company is liable for the damage directly resulting from its negligence in blocking a street crossing with a train for an unreasonable length of time, with knowledge of a nearby fire and the approach of a fire truck and desire of the firemen to cross its tracks; and to justify its effort to protect the train from fire it must proceed without unreasonable delay.
A volunteer fireman, who has had years of experience with fires, is competent to testify as to the result and effect upon said fire of the use of the fire apparatus. This is more especially true, since at the time the testimony was given the fireman had the experience of this very fire. The weight of the testimony is of course for the jury.
Appeal from District Court, Stanton County; Stewart, Judge.
Action by Charles Luedeke against Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Wymer Dressler, R. D. Neely and H. J. Lutz, for appellant.
Cowan & Grady and Fay H. Pollock, contra.
Heard before ROSE, GOOD, THOMPSON, EBERLY and DAY, JJ.
This action was brought to recover damages which the plaintiff claims resulted by reason of the negligence of the defendant in obstructing certain streets with a freight train and delaying the fire department in reaching the plaintiff's property which was burning. The defendant appeals to this court from a judgment in favor of the plaintiff.
The defendant sets up as an affirmative defense that the plaintiff, by written agreement, had assumed all risk of loss by fire to the property destroyed; that he had released the defendant from all such claims and had agreed to indemnify it for any loss. This fire was not started by the operation of defendant's train. It was started by an explosion in the building which was burned, located 150 feet distant from the spur track and not on the right of way. The fire occurred about noon, September 13, 1924, and completely destroyed the building used in connection with a gasoline plant at Stanton, Nebraska.
The written agreement under which the defendant claims freedom from liability is one granting plaintiff the right to construct upon the right of way an unloading device to unload and convey by pipe line gasoline from the cars to the gasoline plant. The provision of this agreement under which exemption is claimed is this:
"The licensee assumes and agrees to pay for all loss or damage to property, and injury to or death of persons, including costs and expenses incident thereto, caused by the construction, installation, maintenance, presence or use of said pipe or pipes or said unloading device, or by reason of any failure to lock, maintain or remove the movable connections as hereinbefore provided or by their presence or use upon the property of the railway company, or by failure of the licensee or the officers, agents or employees of the licensee to abide by or comply with any of the conditions of this license; and the licensee further assumes all loss and damage to said pipe or pipes or unloading device resulting from any act or default of the railway company, its officers, agents, servants or employees, or from the operation of said railroad, whether negligent or otherwise, together with the cost of all repairs and renewals to said pipe or pipes and unloading device; and the said licensee hereby forever indemnifies the railway company against and agrees to save it harmless from all liability for any such loss, damage, injury, death, costs and expenses."
At the outset, it is necessary for us to determine whether the defendant is exempt from liability by the terms of this agreement. Similar questions have been frequently presented to the courts. The great weight of authority sustains the proposition that a railroad company, being under no legal obligation to grant to any one the privilege of constructing and operating a building or equipment upon its right of way, may grant the privilege by contract exempting it from damage resulting from its negligence associated with such construction and operation. James Quirk Milling Co. v. Minneapolis & St. L. R. Co., 98 Minn. 22, 107 N.W. 742; Checkley v. Illinois C. R. Co., 257 Ill. 491, 44 L. R. A. n. s. 1127, 100 N.E. 942. The right of way is the property of a railroad and the use of such property is within its control, except in a way incidental to its function as a common carrier in which the public has an interest. Missouri P. R. Co. v. Nebraska, 217 U.S. 196, 54 L.Ed. 727, 30 S.Ct. 461; Chicago, B. & Q. R. Co. v. State, 50 Neb. 399, 69 N.W. 955. In most of the cases cited, the property was located upon leased premises and the fire was started by the operation of the trains of the company. In this case, the property was not located on the leased premises, and the fire was not started by the defendant. We have not discovered any case directly in point and none has been cited by counsel. The plaintiff's cause of action is based upon the negligence of the defendant, in that it negligently blocked a crossing and thereby delayed the fire department from reaching plaintiff's burning building, which delay resulted in damage to the plaintiff. Does the contract between the parties, heretofore quoted, free the defendant from liability in this case? It has been held, where a spur was constructed under such a contract exempting the company from liability on account of its use, that the company was liable for damages resulting from negligence in running a train through an open switch into cars of gasoline and setting fire to them. The court distinguished this case from others in that the damage did not arise from the operation of the side-track for the benefit of the gasoline company, but was caused by the negligence of the engineer in running the train through an open switch. Standard Oil Co. v. Payne, 220 Mich. 663, 190 N.W. 769. It seems the principle announced therein is applicable to the instant case. The damage in this case was not caused by the use of the unloading device. The negligence alleged by plaintiff had no connection with the "installation, maintenance, presence or use of said pipe or pipes or said...
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