Oliver v. Union Pac. R. Co.

Citation105 Neb. 243,179 N.W. 1017
Decision Date10 November 1920
Docket NumberNo. 21385.,21385.
PartiesOLIVER v. UNION PAC. R. CO.
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

Where evidence essential to a recovery by plaintiff is clearly disproven by physical facts and conditions, a verdict in his favor should be reversed.

“When there is positive and substantial affirmative testimony by a number of witnesses that a gong was sounded, the fact that there is testimony by one or more witnesses that they did not hear the gong and that it did not ring does not authorize that question to be submitted to the jury, where it is shown that the attention of such witnesses was diverted at the time the going is said to have rung, and when their position, mental condition, and surroundings were not such as would raise a presumption that they would have heard it if it had sounded. Before their negative testimony is entitled to weight, it must appear that they had such knowledge as would justify them in speaking affirmatively in denial of the fact.” Dodds v. Omaha & C. B. St. R. Co., 104 Neb. 692, 178 N. W. 258.

Evidence examined, and held insufficient to support the verdict of the jury.

Appeal from District Court, Buffalo County; Hostetler, Judge. Action by Martha Oliver against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remandedThos. F. Hamer, of Kearney, and C. A. Magaw and Thomas W. Bockes, both of Omaha, for appellant.

W. D. Oldham and Ed P. McDermott, both of Kearney, for appellee.

ALDRICH, J.

This is an action at law in which plaintiff alleges that on May 3, 1916, she was a passenger in an automobile driven by Frederick Shieck on one of the public streets of Shelton, which street crosses the tracks of defendant company at the second crossing east of defendant's depot; that plaintiff was a guest together with her two little children occupying the back seat of the automobile; that the automobile approached the crossing of defendant railroad company from the south side while going north on the public street over the crossing; that at this crossing there are two main tracks, one known as the east-bound track, the other as the west-bound track; that immediately south of the east-bound track is a switch extending westward from the crossing at which the injury occurred close to a building known as the Alfalfa Mill; that on said switch there was a string of box cars extending from the Alfalfa Mill to about 20 feet from the crossing; that the cars obstructed the vision to the west of the railroad; that the automobile in which plaintiff was riding as a passenger carefully approached the crossing; that plaintiff listened carefully for any signal either by whistle or the ringing of the bell; that, as soon as the automobile in which plaintiff was riding passed the line of freight cars which obstructed the west vision as they approached closely to the east line of defendant's track, they suddenly observed an engine and a tender in the charge of defendant John Sleuter, the engineer; that said engine was within about 40 feet of the crossing on the house track when discovered; that the driver, Frederick Shieck, tried to stop his automobile, but the momentum carried it farther north onto the south rail of defendant's east-bound track; that with the front wheels in that position it was struck by defendant's engine operated and controlled by defendant John Sleuter.

This collision caused an injury to plaintiff's left knee and was a general shock to her nervous system, and there were also other internal injuries alleged to have been caused. The jury returned a verdict of $4,500 in plaintiff's favor, and defendant appeals.

This in the main is a fair statement of the claims made by plaintiff and contains a fair statement of the facts and issues upon which the case was tried.

The first issue tendered in the trial of this case is: Was the defendant company negligent? An answer to this proposition is decisive of this case.

The modern invention and universal use of the automobile created a different situation in the matter of accidents at railroad crossings than has heretofore prevailed. In former times the collision of a ponderous locomotive with a horse and buggy incurred comparatively little danger of injury to the locomotive or the passenger coaches. Today locomotives colliding with a rapidly moving touring car composed of steel and heavy iron are in danger of destruction, and it is extremely hazardous to the lives of passengers in passenger coaches. Hence there must be a different responsibility imposed upon the railroad management and individuals driving automobiles. The traveling public is entitled to the highest degree of care and skill to avoid accidents which happen all too often in these modern days.

[3] Then, the question for decision here is: Was the defendant guilty, and did this accident originate by reason of its negligence? We answer, the switch...

To continue reading

Request your trial
5 cases
  • Truckers Exchange Bank v. Conroy
    • United States
    • Mississippi Supreme Court
    • December 23, 1940
    ... ... 213; Dodds v. Omaha & ... C. B. Street R. Co., 104 Neb. 692, 178 N.W. 258; ... Oliver v. Union P. R. Co., 105 Neb. 243, 179 N.W ... 1017; Calnon v. Fidelity-Phenix Fire Ins. Co., 114 ... ...
  • Clark v. Union Pac. R. Co.
    • United States
    • Utah Supreme Court
    • April 14, 1927
    ... ... the bell; and that in such case such negative testimony did ... not raise any conflict in the evidence. In support of that ... Jensen v. O. S. L. R. R. Co., 59 Utah 367, ... 204 P. 101; Quinley v. Springfield Traction ... Co., 180 Mo.App. 287, 165 S.W. 346; Oliver v ... U. P. R. R. C., 105 Neb. 243, 179 N.W. 1017; ... Bannister v. Ill. Cent. Ry. Co., 199 Iowa ... 657, 202 N.W. 766; Seaboard Air Line Ry. v ... Myrick (Fla.) 91 Fla. 918, 109 So. 193, and other ... cases, are cited. These cases [70 Utah 37] in effect hold ... that a mere ... ...
  • Mobile & O. R. Co. v. Johnson
    • United States
    • Mississippi Supreme Court
    • May 9, 1932
    ... ... (N.S.) 648; Elias v. Collins, Receiver, et al., ... 52 A.L.R. 1120; Oliver v. The Union Pacific R. R. Company, ... 179 N.W. 1017 ... A ... peremptory instruction ... ...
  • Scroggins v. C.R. England, Inc., 7:10CV5004
    • United States
    • U.S. District Court — District of Nebraska
    • September 24, 2012
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT