Morris v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 03 July 1917
• Docket Number: 19144
• Citation: 163 N.W. 799,101 Neb. 479
• Parties: FRANK MORRIS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

163 N.W. 799

101 Neb. 479

FRANK MORRIS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL., APPELLANTS

No. 19144

Supreme Court of Nebraska

July 3, 1917

APPEAL from the district court for Harlan county: HARRY S. DUNGAN JUDGE. Reversed.

REVERSED.

E. E Whitted and J. L. Rice, for appellants.

J. G Thompson and John Everson, contra.

DEAN, J. MORRISSEY, C. J., and ROSE, J., dissenting. LETTON, J., not sitting.

OPINION

DEAN, J.

This is a companion case to the personal injury action of Askey, Adm'r. v. Chicago, B. & Q. R. Co., ante, p. 266. 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 quantities of intoxicating liquor had been consumed by plaintiff and some of his companions on the afternoon in which the accident occurred and shortly prior thereto, but it is not deemed necessary to discuss here that feature of the case, for reasons already given.

That plaintiff's carelessness and negligence in the premises contributed to his injury is fairly deducible from the record. Even though he was not driving the machine, it was his duty to look and listen where looking and listening would have been effective and where he knew there was danger. In a case of like import it was said by Kirkpatrick, C., in Hajsek v. Chicago, B. & Q. R. Co., 5 Neb. (Unof.) 67: "The opportunities for observation of plaintiff were equal, if not superior, to those of her husband, who was driving the team." In the present case plaintiff was not charged with the responsibility of driving the automobile. His opportunity to be on the lookout for impending danger at a place he must have...