Morris v. Chi., B. & Q. R. Co.

• Decision Date: 03 July 1917
• Docket Number: No. 19144.,19144.
• Citation: 163 N.W. 799,101 Neb. 479
• Court: Nebraska Supreme Court
• Parties: MORRIS v. CHICAGO, B. & Q. R. CO. ET AL.

101 Neb. 479

163 N.W. 799

MORRIS

v.CHICAGO, B. & Q. R. CO. ET AL.

No. 19144.

Supreme Court of Nebraska.

July 3, 1917.

Syllabus by the Court.

Under the circumstances in this case, one who by invitation rode in an automobile driven by another and remained in it, with knowledge that it was approaching a dangerous railroad crossing, without requesting the driver to stop or to take other necessary precautions to avoid danger, was guilty of contributory negligence, and cannot recover for personal injuries sustained from colliding with a passing train, even though no signal by the locomotive bell or whistle was given.

“It is the duty of a traveler upon a public highway when approaching a railroad crossing to exercise ordinary care, and if he fails to do so, and is injured at the crossing by a collision with an engine, and his failure to exercise ordinary care contributed to such injury, he cannot recover therefor.” Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599.

“To recover for an injury alleged to have been sustained at a railroad crossing by a collision with an engine on account of the neglect of the railroad company to cause a bell or whistle to be sounded as its engine approached such crossing, it is not enough for the injured person to show that he was injured at the crossing, and that no signal of a bell or whistle was given, and that such default of the railroad company was negligence; but, to recover, the injured person must further show that the default and negligence of the railroad company were the proximate cause of the injury sued for.” Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599.

The testimony examined, and held, that in this case plaintiff is not entitled under the law to recover for personal injuries sustained.

Appeal from District Court, Harlan County; Dungan, Judge.

Action by Frank Morris against the Chicago, Burlington & Quincy Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded.

Morrissey, C. J., and Rose, J., dissenting.E. E. Whitted, of Denver, Colo., and J. L. Rice, of McCook, for appellants.

John Everson, of Los Angeles, Cal., and J. G. Thompson, of Alma, for appellee.

DEAN, J.

This is a companion case to the personal injury action of Askey, Adm'r, v. Chicago, B. & Q. R. Co. (No. 19055) 162 N. W. 647. This case and the Askey Case grew out of the same accident, but were tried to a jury separately. In the present case plaintiff recovered judgment for $5,000 for personal injuries he sustained. From this judgment an appeal has been prosecuted. The facts that are discussed in the Askey Case that may be necessary to consider in arriving at an understanding of the present case need not be here repeated.

At the time of the accident plaintiff's party was riding in a Ford automobile owned and driven by Thomas Askey. He was seated beside the driver in the front seat on the right-hand side; that being the direction from which the train came with which the automobile collided. The train came from the west and the automobile was going south.

It appears that plaintiff was 30 years of age and Mr. Askey was about 35, and that the hearing and the eyesight of both were good. He said he was acquainted with the vicinity where the accident occurred, and that he had once lived about 3 1/2 miles from that point, and he also testified that he crossed the track there three times in an automobile on the day of and shortly before the collision, the last time being only 20 minutes before it happened, and on one or more of these occasions plaintiff himself drove the car.

Mr. Morris says that the automobile was running at the rate of about 12 or 15 miles an hour, and that when they approached the railroad crossing he looked along the track to the east, but that he could not see to the west, the direction from which the train came, on account of some trees that obstructed the view, and that when he first saw the train coming the car in which he and his party rode was about 20 or 30 feet from the railroad track, and immediately he started to jump out of the machine, and got as far as the running board or fender. From the rate of speed at which the automobile was traveling, as testified by plaintiff it may be inferred from the testimony that, if plaintiff had been in a normal condition, he could have induced his companion either to slow down or stop the machine, or that he could have jumped from the car in any event in time to save himself. With respect to the time when plaintiff first saw the train he testified:

“Q. What did Mr. Askey do, if anything, when you saw the train? A. He says, ‘My God, there is a train.’ Q. What did he do? A. Well, he started to-- The last I seen of him he was stooped over.”

One of the main questions to be determined in the present case is whether plaintiff is chargeable with or shared the negligence and carelessness imputed to the administrator's decedent in the Askey Case. In this case, as in the Askey Case, the testimony shows that considerable...