Mo. Pac. Ry. Co. v. Hansen

• Decision Date: 21 April 1896
• Parties: MISSOURI PAC. RY. CO. v. HANSEN.
• Court: Nebraska Supreme Court

48 Neb. 232

66 N.W. 1105

MISSOURI PAC. RY. CO.

v.HANSEN.

Supreme Court of Nebraska.

April 21, 1896.

Syllabus by the Court.

That a passenger train was run at the rate of 25 miles per hour outside the limits of a city or town, even in a thickly settled neighborhood, and at a point where some persons were accustomed to walk upon the tracks, is not, in itself and alone, sufficient evidence of negligence. In a case where it is sought to hold the railroad liable because of such rate of speed, the jury, on proper request, should be so instructed.

Error to district court, Douglas county; Scott, Judge.

Action by Mamie Hansen, by her next friend, Henry P. Hansen, against the Missouri Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.R. S. Hall A. R. Talbot, J. W. Orr, B. P. Waggener, and Talbot, Bryan & Allen, for plaintiff in error.

George W. Cooper, John W. Johnston, and Ricketts & Wilson, for defendant in error.

IRVINE, C.

Mamie Hansen, an infant, brought this action by her next friend against the Missouri Pacific Railway Company to recover for personal injuries. She had a judgment for $11,000, which the railway company by these proceedings seeks to reverse. The petition alleges that the plaintiff was, at the date of the injury complained of, 12 years of age; that the defendant was the owner of and operating a line of railroad from Omaha to Kansas City. Then comes the following: “That on the line of defendant's said railroad, and within a thickly settled neighborhood adjoining the corporate limits of the said city of Omaha, immediately northeast of a public crossing on the line of said railway aforesaid, called ‘Ruser's Crossing,’ defendant, without objection, notice, or warning on its part, at said date, and a long time prior thereto, allowed its said railroad track at said point to be habitually and constantly used by men, women, and children going back and forth, as a footpath and public thoroughfare, the distance of one-half mile northeast of said Ruser's crossing to a point on the line of said railroad where the same intersects with another public crossing, and said defendant had full knowledge that said track aforesaid was so used; that on said date, and while plaintiff was walking in the center of the track of said railroad, along that portion of the line of defendant's said railroad used by pedestrians as aforesaid, going northeast from said Ruser's crossing, and at a point some 600 feet from said Ruser's crossing, that at said time, which was about the hour of 5 o'clock p. m. on said date aforesaid, defendant's agents, servants, and employés were running a locomotive and passenger train attached thereto over and upon said railroad at said time and place, which was coming from the southwest; that while plaintiff was so walking upon said track at said time and place, traveling northeast, with her back to said approaching train, she (plaintiff) could have been and was plainly seen and distinguished, as an infant walking on said railroad track, by the said agents, servants, and employés of defendant then running and managing said locomotive and train of cars at said time and place for the distance of one-half mile, within which distance said locomotive and cars could have been easily stopped, but said defendant's agents, servants, and employés, disregarding the life and safety of this (infant) plaintiff, ran said train, at said time and place, at the unlawful rate of speed of 25 miles per hour,...