Mo. Pac. Ry. Co. v. Geist

• Decision Date: 22 October 1896
• Citation: 49 Neb. 489,68 N.W. 640
• Parties: MISSOURI PAC. RY. CO. v. GEIST.
• Court: Nebraska Supreme Court

49 Neb. 489

68 N.W. 640

MISSOURI PAC. RY. CO.

v.GEIST.

Supreme Court of Nebraska.

Oct. 22, 1896.

Syllabus by the Court.

1. It is provided in section 104 of chapter 16 of the Compiled Statutes of this state: “A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one half thereof to go to the informer, and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect.”

2. Under the foregoing provision, in an action where an engine started from a position at a distance from a street or road crossing of less than 80 rods, it would have been proper to instruct a jury in the trial of the cause that the bell should have been rung or the whistle blown from the starting place until the engine had crossed the road or street. But, under the existent circumstances, it was not error which calls for the reversal of a judgment for plaintiff that the judge instructed the jury that it was the duty of defendant to cause the bell to be rung or the whistle to be blown at a distance of at least 80 rods from the place where the railroad crosses a street, and be kept ringing or whistling until it shall have crossed such street, without further informing the jury that, if the bell was rung or the whistle blown from the starting point, as in the case at bar, but some 60 or 70 feet distant from the crossing, it would have fulfilled the duty.

3. The jury was informed by one portion of an instruction given as follows: “But defendant is not required to both ring the bell and blow the whistle, but must do one or the other. A failure to do either, under the statute, renders the defendant criminally liable.” Held, that the portion in which the jury was told that for a failure to perform the designated duty the defendant became criminally liable was improper in this, a civil action for damages, and calculated to mislead the jury in estimating the damages to be allowed, if any, and hence prejudicial to the rights of defendant.

4. The failure of a railroad company to cause a bell to be rung or a whistle to be sounded as its engine approaches a street or road crossing is evidence which tends to prove negligence on the part of the company. It may, but does not necessarily, demand an inference of negligence. It does not establish negligence as a matter of law, and it is error for the court to instruct a jury that such failure on the part of the company constitutes negligence, and renders it liable. Rule announced in Railroad Co. v. Metcalf, 63 N. W. 51, 44 Neb. 848, and Railroad Co. v. Talbot, 67 N. W. 599, 48 Neb. 627, approved and followed.

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

Action by Lena Geist, by her next friend, Anton Geist, against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.Lee S. Estelle, James W. Orr, and B. P. Waggener, for plaintiff in error.

Mahoney & Smyth, for defendant in error.

HARRISON, J.

Lena Geist, a girl, at the time of the commencement of this action, six years of age, by her father and next friend, Anton Geist, instituted this action in the district court of Douglas county against the defendant railroad company to recover damages alleged to have accrued to her by reason of injuries caused by the negligence of the defendant company. It was pleaded that the injuries to plaintiff were received May 3, 1892, at a place where a line of railroad operated by the defendant crossed Nicholas street, in the city of Omaha, and where it devolved upon defendant, as a duty, to have present a flagman, to give persons about to cross the track of defendant warning or notice of any approaching trains, engines, or cars. It is stated in the petition: “That said injuries were caused wholly by negligence and want of care of the defendant, in negligently omitting to give a signal of the approach of said locomotive and train to said crossing, either by whistling or ringing the bell, and in negligently neglecting to properly flag said crossing, and to give notice to said Lena Geist of the approach of said train upon said railroad.” There is in the petition, in another portion than that just quoted, this sentence: “That the said defendant, by its servants, agents, and employés, negligently ran a locomotive with a train of cars very rapidly along its said tracks, and to and across said Nicholas street at said crossing.” The defendant's answer, to the extent we need notice it, was as follows: “For further answer this defendant says that the said plaintiff ought not to have or maintain her said action against this defendant, because it says that the parents of said Lena Geist were guilty of gross and criminal carelessness in permitting the said Lena Geist, a mere infant, to go about unattended upon the public streets and upon railroad tracks which were being used in operating engines, cars, and locomotives thereon and thereover. That the said parents of Lena Geist, well knowing that she was incapable of taking care of herself, and of the dangers that she incurred in crossing railroad tracks, took no precaution whatever to protect her from injury and accidents. That, if the said parents of Lena Geist had exercised reasonable and ordinary care and diligence as her parents and natural guardians and protectors, the injury complained of would not have occurred; and the same was solely the result of the gross and criminal negligence and carelessness of the said parents of said Lena Geist.” The foregoing, coupled with denials of matters stated in the petition, were all the defenses contained in the answer. There was a reply, and of the issues joined the result of a trial was a verdict and judgment for plaintiff in the sum of $8,333.33 1/3. The defendant company presents the cause here for review.

One of the errors assigned is directed against the action of the trial judge in giving paragraph No. 7 of the instructions to the jury, which was as follows: “You are further instructed that under the statutes of this state the defendant is required to have upon each locomotive engine upon its tracks a bell and steam whistle, which bell must be rung or the steam whistle must be blown at the distance of at least eighty rods from the place where the railroad crosses a street, and be kept ringing or whistling until it shall have crossed such street; but defendant is not required to both ring the bell and blow the whistle, but must do one or the other. A failure to do either, under the statute, renders defendant criminally liable, and would be negligence on the part of the defendant; and if you find from the evidence, under these instructions, that plaintiff was injured by reason of defendant not ringing the engine bell or not blowing the whistle as above explained, and you further find that such neglect to ring the bell or blow the whistle was the proximate cause of the injury complained of, and you find that plaintiff has established by the evidence the other material alleged facts in her behalf, your verdict should be for the plaintiff.” The evidence in the case disclosed that the place from which the locomotive and train started was only some 60 or 70 feet distant from the crossing where the plaintiff was struck by the...