Mitchell v. Mo. Pac. R. Corp., 23268.

CourtSupreme Court of Nebraska
Writing for the CourtEBERLY
Citation206 N.W. 12,114 Neb. 72
Docket NumberNo. 23268.,23268.
Decision Date18 November 1925

114 Neb. 72
206 N.W. 12


No. 23268.

Supreme Court of Nebraska.

Nov. 18, 1925.

Syllabus by the Court.

The consignee has the right to examine goods before accepting delivery; and this doctrine applies to interstate as well as intrastate shipments, there being nothing in the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa) which restricts this right, and it also applies to carload lots. And while engaged in the reasonable exercise of this right of inspection upon the premises of the carrier, the consignee may not be considered as a trespasser or bare licensee, but is an invitee in the technical sense of that term.

The duty of the carrier as to making delivery and providing opportunity for reasonable inspection prior thereto may be determined by the established custom and well-known usage which will be binding upon the shipper and the consignee; thus the place and time of inspection may be determined by the custom or usage.

“If, on the trial of an action ‘brought to recover damages for injuries to a person or to his property caused by the negligence of another,’ plaintiff is found to be guilty of negligence directly contributing to the injury complained of, he cannot recover, even though defendant was negligent, unless the contributory negligence of plaintiff was slight and the negligence of defendant was gross in comparison therewith; and if, in comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which, under the circumstances, amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, the contributory negligence of plaintiff, however slight, will defeat a recovery. And even when plaintiff has established his right to recover under this rule, it is the duty of the jury to deduct from the amount of damage sustained such amount as his contributory negligence, if any, bears to the whole amount of damage sustained. Rev. St. 1913, § 7892.” Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N. W. 158. See, also, Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N. W. 59.

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Louise Mitchell, administratrix of James H. Mitchell, deceased, and another, against the Missouri Pacific Railroad Corporation in Nebraska. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

[206 N.W. 12]

J. A. C. Kennedy and Yale C. Holland, both of Omaha, for appellant.

Reavis & Beghtol, Good & Good, and Peterson & Devoe, all of Lincoln, for appellees.



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 phone 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

[206 N.W. 13]

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...

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2 cases
  • Mitchell v. Missouri Pacific Railroad Corporation, 23268
    • United States
    • Supreme Court of Nebraska
    • November 18, 1925
    ...206 N.W. 12 114 Neb. 72 LOUISE MITCHELL, ADMINISTRATRIX, ET AL., APPELLEES v. MISSOURI PACIFIC RAILROAD CORPORATION, APPELLANT No. 23268Supreme Court of NebraskaNovember 18, APPEAL from the district court for Lancaster county: WILLARD E. STEWART, JUDGE. Reversed. REVERSED. J. A. C. Kennedy ......
  • Kelso v. Seward Cnty., 25685.
    • United States
    • Supreme Court of Nebraska
    • June 1, 1928
    ......Scotts Bluffs County, 104 Neb. 254, 177 N. W. 158, and Mitchell v. Missouri P. R. Co., 114 Neb. 72, 206 N. W. 12. The court's instructions ......

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