Mitchell v. Missouri Pacific Railroad Corporation

• Decision Date: 18 November 1925
• Docket Number: 23268
• Parties: LOUISE MITCHELL, ADMINISTRATRIX, ET AL., APPELLEES v. MISSOURI PACIFIC RAILROAD CORPORATION, APPELLANT
• Court: Nebraska Supreme Court

206 N.W. 12

114 Neb. 72

LOUISE MITCHELL, ADMINISTRATRIX, ET AL., APPELLEES v. MISSOURI PACIFIC RAILROAD CORPORATION, APPELLANT

No. 23268

Supreme Court of Nebraska

November 18, 1925

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.

REVERSED.

J. A C. Kennedy and Yale C. Holland, for appellant.

Peterson & Devoe, Good & Good and Reavis & Beghtol, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

EBERLY, J.

This is an action by Louise Mitchell, administratrix of James H Mitchell, deceased, and another, plaintiffs, against the Missouri Pacific Railroad Corporation in Nebraska, defendant and appellant here, for damages caused by the death of James H. Mitchell. At the time of his death Mitchell was president of the City Fuel Company, Lincoln, Nebraska, a corporation then dealing in coal, wholesale and retail.

On August 22, 1921, Missouri Pacific car No. 70231 arrived at the railroad yards of the defendant in Lincoln consigned to the City Fuel Company. On the morning of August 23, Gaffney, who was the acting car clerk of the defendant, in accordance with the prevailing custom, called the City Fuel Company by telephone to secure "disposition" of car No. 70231. Eberly, a yard superintendent of the City Fuel Company, pursuant to instructions previously given by Mitchell, answered the telephone call and was advised of the arrival of car No. 70231 and was requested to give disposition of the same, to which Eberly then replied that this could not be done until after the coal had been inspected, and he requested that the car be held by the Missouri Pacific Railroad Corporation for that purpose. In turn, Gaffney conveyed the information to Gardner, the foreman of the switching crew, that there was no disposition of car No. 70231, and that the same was directed to be "held." About an hour after the message concerning car No. 70231 had been received at the office of the City Fuel Company, Mitchell, the deceased, accompanied by Eberly, proceeded to search out the car in question for the purpose of inspection. They commenced at the east end of the Missouri Pacific yards and proceeded westerly in search of the car in question and finally arrived at a point where the Lincoln mill is located on defendant's right of way. Here the car sought for was discovered as the leading car of a string of six or eight cars which were standing detached from a switch engine and extending from a point near what is known as the "scale house" in a westerly direction on what appears in the record as the "scale track" and the "crossover track" connected therewith. These men passed over this space of some 150 feet that intervened between the south line of defendant's right of way and the car in question and were in the unobstructed view of the employees of the defendant constituting the switching crew. In like manner the switch engine which was then faced to the east and detached from the string of cars in question, and not in motion, was in plain sight of the two men. The evidence discloses that car No. 70231 which was an open coal car loaded with coal, was, because of a curve in the track, and the presence in the string of cars of some box cars, not within the view of the members of the switching crew. On arrival at the car, Mitchell, in the manner usual to making such inspections, mounted the ladder and took a position on the east end of the car, part of the time standing on the coal, and part of the time on a beam which was some eight inches in width across the east end of the car. Eberly followed up the ladder, where he remained. The inspection was completed and Eberly descended from the ladder. Mitchell had returned to his position on the beam and was stooping preparing to follow. As he stooped to grasp the ladder, a car set in motion by the switch engine, without any warning of any kind, and without knowledge of either Eberly or Mitchell, came in contact with the east end of the string of cars, and the force of the impact transmitted through the cars intervening struck the car on which Mitchell was standing with such force as to precipitate him to the ground between the car on which he was standing and the car immediately east of it. This accident resulted in his death.

Evidence was introduced by the plaintiffs tending to show that for many years a custom or usage, well known and tacitly, if not expressly, approved by the defendant, existed in the Lincoln yards, and that pursuant thereto consignees of cars sought them out and inspected them wherever in the yards they might be found, which obviously would include as a place where cars would be subject to inspection the scene of the death of the deceased. The defendant controverts this claim and insists that, even if the evidence as a whole establishes the fact that inspections were permitted in certain portions of the defendant's railroad yards, the scale track, the scene of the accident, was a lead track and kept open continuously and was never occupied for any length of time except when cars were being weighed, and also insists that the scale track in question as well as the crossover connected therewith were never used for inspection purposes and were not within the custom or usage referred to.

Before the issues were joined on plaintiffs' amended petition, a motion was filed by the defendant to strike certain portions of the same, which was in part sustained and in part denied. The case was finally tried upon plaintiffs' amended petition and the amended answer of the defendant denying negligence and averring contributory negligence and the assumption of risk by plaintiffs, and the reply of plaintiffs. There was a verdict for the plaintiffs, and defendant appeals.

Among the assignments of error most emphasized in defendant's brief are those which relate to the claim of the insufficiency of the evidence to warrant a verdict in favor of the plaintiffs. In this connection it is to be remembered that, the jury having returned a verdict for the plaintiffs, all matters of conflicting evidence must be resolved in their favor, and also where the evidence is susceptible of two constructions, one favorable to the plaintiffs and one against them, the first, and not the second, will prevail in the consideration of these assignments of error. The fundamental contention of the defendant is that Mr. Mitchell at the time of his death was in its yard purely on his own business, business in which the railroad company was not interested; that if he was not a trespasser he was at least in no better position than a bare licensee. In either case he was a person to whom the railroad company then owed no duty as long as no wanton or wilful injury was inflicted upon him. In view of the facts of the record, the rule adopted in this jurisdiction applicable, appears to be otherwise. Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N.W. 1120; Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb. 660, 58 N.W. 1125; Omaha & R. V. R. Co. v. Wright, 47 Neb. 886, 66 N.W. 842; Stading v. Chicago, St. P., M. & O. R. Co., 78 Neb. 566, 111 N.W. 460; Hair v. Chicago, B. & Q. R. Co., 84 Neb. 398, 121 N.W. 439. In Shults v. Chicago, B. & Q. R. Co., 83 Neb. 272, 119 N.W. 463, and also in Merkeuras v. Chicago, B. & Q. R. Co., 101 Neb. 717, 164 N.W. 719, the doctrine of the case of Chicago, B. & Q. R. Co. v. Wymore, supra, is expressly approved, though the case itself is distinguished. Indeed, if Mitchell is to be deemed a trespasser or, at most, a bare licensee, it would seem that the facts of the instant case would call for the application of the doctrine announced in Krummack v. Missouri P. R. Co., 98 Neb. 773, 154 N.W. 541, which is as follows:

"'A railroad company * * * is bound in all cases to exercise reasonable care to avoid injuring all persons who are known to be, or who may be reasonably expected to be, upon its right of way.' Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N.W. 1120. And where the evidence shows that the switching-yards of a railway are close to a large public school building and playground, that young children have long been in the habit of playing on or near the cars and tracks, ordinary care demands that in switching cars due regard should be paid to these conditions, and a failure to enclose the tracks and a neglect on the part of those engaged in switching to observe whether children are on the cars or tracks when a train is being backed in, from the lack of which precautions a trespassing child is injured, may constitute actionable negligence."

For, in view of the custom and usage which the jury's verdict presupposes, the defendant's attention was necessarily challenged to the fact of the continued presence of consignees or their agents in the yards engaged in duties of inspection, and was therefore required by law to exercise reasonable care to avoid injuring all parties known to be, or who might reasonably be expected to be, upon its right of way in the yards and for the purpose in question. It could not therefore be said that the defendant in the instant case, under the circumstances hereinbefore recited, performed its full duty when it inflicted no wanton or wilful injury upon the deceased, even though he be considered a trespasser or a bare licensee. But it is thought that the rule of law defining the rights of trespassers and licensees, is inapplicable under the facts in this case. The defendant at the time was a common carrier engaged in completing the shipment of coal over its lines consigned to the City Fuel Company, of which the deceased was president and managing officer. This car-load of coal had arrived at its destination, Lincoln, Nebraska. It was...