Nilson v. Chicago, Burlington & Quincy Railway Company
| Decision Date | 11 June 1909 |
| Docket Number | 15,631 |
| Parties | ANNA C. NILSON, ADMINISTRATRIX, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Clay county: LESLIE G. HURD JUDGE. Affirmed.
AFFIRMED.
James E. Kelby, Byron Clark and Frank E. Bishop, for appellants.
L. B Stiner, Paul E. Boslaugh and John A. Moore, contra.
Action for damages caused by the killing of plaintiff's husband by the negligence of defendant railway company's employees. The defense is a general denial and contributory negligence.
The deceased, Jacob Nilson, was killed between 8 and 9 o'clock in the morning of July 27, 1906, at a point where Saunders avenue in the city of Sutton is crossed by the tracks of the defendant railway company. The evidence clearly shows negligence on the part of the defendant in its manner of operating its cars. Saunders avenue is the main business street of Sutton. It is crossed by five tracks. The track to two elevators, one situated east, the other west of Saunders avenue, lies farthest north. The next track is the main line of the Kansas City & Omaha Railroad Company, a subsidiary corporation of the defendant. An engine some distance east of the crossing was switching cars. Four cars had been detached on the main line for the purpose of making a "flying switch" to the station, and were passing across Saunders avenue to the west. Almost immediately thereafter two other cars were detached on the elevator track by the same method for the purpose of setting them at the west elevator, a distance of about 200 feet west of the crossing. As the four cars crossed Saunders avenue, the conductor, who was riding upon one of them, saw the two cars on the elevator track also crossing the street, and saw a man on the track directly in front of them. He called out, but the man was struck immediately, knocked down and killed. He testifies there was only the distance from the elevator track to the main line between them, and that it could not be much over 20 feet. A brakeman who was riding on the top of the car which struck the deceased testified that he was standing about the center of the west car looking west until after he passed both sidewalks; that they were going about six miles an hour and that he could see the track about 20 or 30 feet ahead of the car. The first he knew of the accident was that he heard Powell, the conductor, call out, and felt the car run over somebody; that that there was no one standing on the track as he approached the street from the east, and that if there had been a man there he could have seen him; that he saw people on both sides of the crossing, but not on this track. The other brakeman says the cars were going about six or seven miles an hour, while other witnesses testify that these two cars were "going pretty fast," "9 and 10 miles an hour." Some witnesses testify that the bell of the engine was ringing, while other testimony is to the effect that it only rang "a few taps when it started to back" on the elevator track to make the "flying switch," and others heard no bell. No one saw the deceased step upon the track. Several witnesses whose attention was attracted by the calling out of Powell say deceased was standing upon the track when the cars struck him, facing southwest or west. Some of these witnesses were at a distance of from 185 to over 200 feet away, some a little north of west, and some south of west, of the place of accident. The two cars must have been moving with rapidity, as they did not stop for a distance of over 200 feet beyond the crossing, although the brakeman set the brakes as soon as the accident happened. The four cars seem to have been moving about four or five miles an hour, and the two cars much faster, so that both sections were moving at the same time, and the two cars, although "kicked" later, were near the four when the east end of the latter passed the street. There are buildings on the the east side of Saunders avenue which obstruct the view until a person walking south could not look eastward beyond the street line until he was on or close to the track, when he could see east for some distance.
Taking all the testimony together, we think a fair inference is that the deceased was about to cross the tracks on the west side of Saunders avenue when his attention was attracted to the four cars moving in front of him to the west on the main line; that he could not see the approaching cars from the east until he was on or close to the track; and that, as soon as the way was clear in front by the four cars passing, he stepped upon the elevator track, his attention was called and his progress arrested by Powell's cry, when he was immediately struck down by the moving cars. All the evidence shows that the crossing of the west line of the avenue by the four cars, the cry by Powell, and the striking of deceased occupied an almost imperceptible period of time, and the man who was closest, Powell, the conductor, testifies: " To make "flying switches" in the manner described across the main business street of a town of 2,000 people, without other signals than those given at Sutton, and with no other precautions to ensure the safety of passers, would appear to most men to be gross negligence, and the jury were fully warranted in holding for plaintiff upon that issue.
Complaint is made that the court allowed an ordinance of the city regulating the speed of trains, etc., to be read in evidence without proof of its publication. Even if the publication were not proved properly, which we do not decide, we think the admission of this ordinance could not possibly prejudice the defendant. The fact that such an ordinance did or did not exist under the circumstances of this case could not affect the question of negligence. It was the fact of the defendant moving its cars in the manner that it did in such a thoroughfare, without greater care to protect persons passing along the street, that furnished the evidence of negligence, and it did not require an ordinance to establish it. Moreover, the answer contained what this court has in several instances held to be an admission, a qualified denial to the effect that, "if the ordinance was passed and in existence, it was unreasonable" and void. Evidence of a subsequent ordinance repealing this one was erroneously admitted. Such evidence could have no relevancy to the questions at issue, but no prejudice is shown, and we will not reverse a case merely for the admission of immaterial evidence. To do so would reverse a large percentage of all cases tried, for, in even the most carefully conducted trials, such evidence is often received, the court being unable to anticipate that further facts may not render it material.
The main point made is that the deceased was guilty of contributory negligence in not looking and listening as he approached the track. Of course, this contention is based purely on inference. No one saw him as he approached the track or saw him step between the rails; but it is argued that, since it is proved that he could see and hear, and that his view was unobstructed to the east from the point where he was struck and from the edge of the ties close by, he must have been negligent in not hearing or seeing the approaching cars. The burden of proving that the deceased was negligent rests upon the defendant, and it was incumbent upon it to satisfy the jury of this by a preponderance of the evidence. Where the only proof is an inference, other inferences which may reasonably be drawn from the circumstances are to be considered. The defendants point of view is not the only one that may be taken. 1 Shearman and Redfield, Law of Negligence (5th ed.), sec. 114....
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