Omaha, N. & B. H. R. Co. v. O'Donnell

• Decision Date: 23 November 1887
• Citation: 35 N.W. 235,22 Neb. 475
• Parties: OMAHA, N. & B. H. R. CO. v. O'DONNELL.
• Court: Nebraska Supreme Court

22 Neb. 475

35 N.W. 235

OMAHA, N. & B. H. R. CO.

v.O'DONNELL.

Supreme Court of Nebraska.

November 23, 1887.

Syllabus by the Court.

Where a cause is tried to a jury, and their verdict is set aside and a new trial granted, and the second trial results in substantially the same verdict, upon which a judgment is rendered by the trial court, and for the reversal of which proceedings in error are prosecuted in the supreme court, a petition in error being also filed by the defendant in error, by which he seeks to have judgment rendered on the first verdict, the action of the district court will not be disturbed, it being apparent that the last verdict was sufficient to cover the damage done on either trial.

The failure of servants of a railroad company to give the statutory signals at a crossing, when running at a high rate of speed, and not upon the regular time for the train, is to be considered in deciding whether such company was guilty of negligence, and whether a person injured at the crossing used due care in attempting to cross.¹

The question as to whether a person injured by a passing train at a railroad crossing was guilty of negligence in attempting to cross, is usually a question of fact to be decided upon all the circumstances of the case as shown by the evidence.

Where no objections were made to the instructions in the motion for a new trial, they cannot be considered by the supreme court. Schreckengast v. Ealy, 16 Neb. 510, 20 N. W. Rep. 510.

Error from district court, Platte county; POST, Judge.A. J. Poppleton, J. S. Shropshire, and W. R. Kelly, for plaintiff.

McAllister Bros., for defendant.

REESE, J.

This action was instituted in the district court of Platte county, for damages sustained by plaintiff resulting from personal injury, and the destruction of his team, harness, and wagon at a railroad crossing at the town of St. Edwards, on the line of the railroad of plaintiff in error. The cause was tried to a jury, who returned a verdict in favor of defendant in error for $5,500. This verdict was set aside by the district court and a new trial granted. On the second trial a verdict was returned in favor of defendant in error for $5,000. A motion for a new trial was filed, assigning two grounds therefor: First, “the verdict is not sustained by the evidence, and is contrary to law. Second, for errors of law occurring at the trial and duly excepted to by defendant.” This motion was overruled and judgment rendered on the verdict. Plaintiff in error brings the cause into this court by proceedings in error. Defendant in error alleges error in the action of the district court in setting aside the first verdict, and asks that that order be set aside, and judgment rendered thereon.

It is conceded that the first verdict was set aside for the sole reason that the evidence was not sufficient to sustain it, and that the evidence upon that trial was substantially the same as on the last. We do not think it necessary to enter into a discussion of the testimony adduced upon the first trial, for the reason that the result of the second one was substantially the same, and for the further reason that it could not be said that there was an abuse of discretion in the action of the court. To this may be added the further reason that it is apparent that the last verdict was sufficiently large to cover the damage proven on either trial. The sole question presented by this record is as to whether the verdict is sustained by the evidence.

The testimony upon the trial shows substantially the following uncontroverted facts. Plaintiff's railroad is constructed through the village of St. Edwards upon a straight line and a level surface. Defendant resides about one-half mile north of the village and on the east side of the railroad track, the direction of which is from south-east to north-west, and perhaps about one-half mile from the track. That part of the village in which the post-office, stores, etc., are situated, is on the west side of the track, or across the same from the residence of defendant in error. The crossing is at the section line on the north boundary of the village, and about one-half mile south-west from defendant's house. On the day on which the accident occurred, defendant in error was in the village with his team and wagon, and at about 7 o'clock in the evening started to go home. The point from which he started was about four blocks north-west of the depot and perhaps about the distance of one block from the track of plaintiff's road. His first direction was one and a half blocks west, thence four blocks north, which again brought him near the track parallel with the track to the north-west along the right of way for about 180 yards to the section line crossing, where, by a short turn to the right, he sought to cross the railroad track. As he was in the act of crossing the track, plaintiff's train, coming from the south-east, struck his team and wagon, killing both horses, breaking the wagon and harness, and injuring him. The regular time for the train was 5:30 o'clock. It was, therefore, about one and a half hours late. Of this fact defendant in error had knowledge, for he had seen the train standing near the depot about three-quarters of a mile south-east from the place of the accident, some little time before he started home, but he testifies that he had been informed, by what he considered reliable authority, that the train had gone before he started. His informant, however, was in no way connected with the railroad. It was quite cold and the wind was blowing strongly from the north-west. There was but one train per day running each way; the return train going south in the morning.

In the examination of the question presented--the contributory negligence of defendant in error--it must not be forgotten that all questions of fact were for the jury to determine, and...