Oliver v. Union Pacific Railroad Company

• Decision Date: 10 November 1920
• Docket Number: 21385
• Citation: 179 N.W. 1017,105 Neb. 243
• Parties: MARTHA OLIVER, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

179 N.W. 1017

105 Neb. 243

MARTHA OLIVER, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT

No. 21385

Supreme Court of Nebraska

November 10, 1920

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

C. A Magaw, Thomas W. Bockes and Thomas F. Hamer, for appellant.

W. D Oldham and Ed P. McDermott, contra.

ALDRICH, J. MORRISSEY, C. J., not sitting.

OPINION

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 the whistle or 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 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.

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 engine and the cars had the right, as a matter of law, to be on this track where the accident occurred, for the purpose of placing some cars. The distance from the house track to the track in question was about 40 or 45 feet. It is true that the automobile driver coming from the house track had his view somewhat obstructed by freight cars, but before arriving at the track in question he and the occupants had a clear and unobstructed view to the west of where the automobile was being driven. The record shows that the automobile was moving at the rate of five or six miles an hour. Then the car was under absolute control. Pressure upon the foot brake would have stopped it almost instantly. The switch...