Omaha & R. V. Ry. Co. v. Clarke

• Decision Date: 16 January 1894
• Citation: 39 Neb. 65,57 N.W. 545
• Parties: OMAHA & R. V. RY. CO. v. CLARKE.
• Court: Nebraska Supreme Court

39 Neb. 65

57 N.W. 545

OMAHA & R. V. RY. CO.

v.CLARKE.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. In order to render a railroad company liable for injuries caused by horses running away in consequence of fright caused by steam escaping from the valves of an engine, it must appear, not only that the opening of the valves was unnecessary, but also that it was done under such circumstances as to imply a failure to exercise that care which a prudent and reasonable man would exercise under similar circumstances.

2. While negligence is an inference to be drawn from the facts, the existence of the facts themselves must not be left to conjecture, but facts must be established by evidence which would warrant a reasonable man in inferring negligence.

3. The evidence in this case re-examined, and held insufficient to sustain the verdict.

On rehearing. Reversed.

For former report, see 53 N. W. 970.

IRVINE, C.

An opinion in this case, affirming the judgment of the district court, was filed January 3, 1893, and reported in 35 Neb. 867, 53 N. W. 970. A rehearing has been granted upon the question of the sufficiency of the evidence, the question being raised upon the proof of negligence upon the part of the plaintiff in error. The statement of facts in the former opinion suffices, without much by way of addition, for this. The facts alleged for the purpose of establishing negligence on the part of the plaintiff in error may be analyzed as follows:

First. That the railroad company negligently permitted its engine to stand for an undue length of time at the north margin of the street. There is absolutely no evidence tending to establish these averments, and a further consideration of the point is unnecessary.

Second. That the railroad company unlawfully neglected to have any flagman at the street crossing. The duty of a flagman is clearly to keep a lookout, and warn persons using the street of the approach of trains. Necessarily, he cannot have any knowledge of the fact that locomotives receding or standing on the track are about to let off steam, and it is not his duty to warn passersby of the fact that the steam is about to escape. The presence or absence of a flagman could not in any manner affect the case, and there could be no recovery upon these averments. The jury was expressly so instructed, and the instruction was correct.

Third. That, as the plaintiff below approached the crossing, the railroad company, by its servants, negligently, wrongfully, and unlawfully, suddenly and without warning, let off and discharged steam from the locomotive and from its cylinders in great volume and with noise, whereby plaintiff's horses were frightened, ran away, and threw the plaintiff from his wagon, causing the injuries. It is upon these averments that the judgment must stand, if at all, and the court so treated the case upon the former hearing. The conclusions reached by the court upon the legal questions thus presented were stated in the former opinion as follows: “A railroad company, in the legitimate transaction of its business, has the right to use steam, and is not liable for the proper and necessary use of the same, even if it result in an injury to others, as by frightening horses, and causing them to run away. If, however, an engineer within a city, where teams are constantly passing, needlessly and unnecessarily opens the valves of his engine, and frightens such horses, and causes them to run away and commit injury, the company will be liable, provided the plaintiff is free from contributory negligence.” It was also held that the allegations that steam was blown off negligently, wrongfully, and unlawfully implied that such action was unnecessary. We have no doubt that the petition stated a cause of action correctly. It was held, in the former opinion, that the railroad company would be liable for an injury sustained by reason of such an accident, where the horses were frightened by an engineer's negligently permitting steam to escape from his engine; but, where it is said that the company is liable when such act is done unnecessarily, the term “unnecessary” must not be limited in its application to an absolutely unavoidable escape of steam. As said by the court in the syllabus of the former opinion, a railroad company has the right to use steam, and is not liable for the proper and necessary use of the same, even if it results in an injury to others. The railroad company is in such cases liable for injuries caused by its negligence, and its negligence alone. Its liability is to be measured by the same rules as that of an individual under similar circumstances. It is not for the consequences of every act not strictly necessary that one is responsible. I may drive along a highway for pleasure, no motive except seeking my own amusement inducing me to do so. The fact that I am so driving may cause an injury; but I am not responsible in damages therefor simply because it was not necessary for me to be driving at that place, and at that time, but, if I am to be held responsible, it must be because I failed to exercise reasonable care in the manner of my driving. I may make alterations in my sidewalk, and some one passing during the progress of those alterations may be injured; but I cannot be held responsible solely because it was not a matter of necessity for me, at the time, to make such alterations, but, if I am responsible, it must be because I failed to observe reasonable care in making such alterations at the time, and under the circumstances. In other words, an act cannot be determined negligent simply from the fact that it was not strictly necessary; but, in order to constitute negligence, there must either be the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable...