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

• Decision Date: 20 May 1896
• Court: Nebraska Supreme Court
• Parties: OMAHA & R. V. RY. CO. v. TALBOT.

48 Neb. 627

67 N.W. 599

OMAHA & R. V. RY. CO.

v.TALBOT.

Supreme Court of Nebraska.

May 20, 1896.

Syllabus by the Court.

1. Two mechanics were riding in a wagon in which they were transporting their tools, one driving the team. The driver, without looking or listening for the approach of a train, drove on a railroad crossing, where a collision with a locomotive engine occurred, injuring the other mechanic. It did not appear that the injured party was under any disability whatever, nor whether or not he looked or listened. Held: (1) That, the conveyance being a private one, the driver was the agent of the injured party. (2) If the act of the driver in going upon the crossing without looking and listening was negligence which contributed to the injury received, the injured party cannot recover.

2. It is the duty of a traveler upon a public highway, when approaching a railroad crossing, to exercise ordinary care; and if he fails to do so, and is injured at the crossing by a collision with an engine, and his failure to exercise ordinary care contributed to such injury, he cannot recover therefor.

3. A railroad crossing is a place of danger, and all persons to whom negligence may be imputed are bound to take notice of that fact.

4. The act of a party in going upon a railroad crossing without first listening and looking for the approach of a train, without a reasonable excuse therefor, is such as permits of no other inference than that of negligence; and, if such failure to look and listen contributes to the party's injury, he cannot recover.

5. The mere running of a train behind its schedule time is not evidence which tends to prove negligence.

6. Outside the limits of cities, villages, and towns, negligence cannot be imputed to a railroad company solely by reason of the speed of its train, however great.

7. The failure of a railroad company to cause a bell to be rung or whistle sounded as its engine approaches a crossing, is evidence which tends to prove negligence on the part of the railroad company, but does not necessarily demand an inference of negligence.

8. To recover for an injury alleged to have been sustained at a railroad crossing by a collision with an engine on account of the neglect of the railroad company to cause a bell or whistle to be sounded as its engine approached such crossing, it is not enough for the injured party to show that he was injured at the crossing, and that no signal by bell or whistle was given, and that such default of the railroad company was negligence; but, to recover, the injured party must further show that the default and negligence of the railroad company were the proximate cause of the injury sued for.

Error to district court, Boone county; Thompson, Judge.

Action by James B. Talbot against the Omaha & Republican Valley Railway Company to recover damages for personal injuries. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

M. W. McGann and M. F. Harrington, for defendant in error.

RAGAN, C.

About 11 o'clock in the forenoon of the 20th of May, 1892, William Patten and James B. Talbot were riding in an uncovered spring wagon drawn by two ponies, on a public highway in Boone county, which crossed at grade the track of the Omaha & Republican Valley Railway Company, hereinafter called the “Valley Company.” Patten handled the lines, or did the driving. At the time the wagon was passing over the railway tracks, it was struck by a locomotive engine of the Valley Company, pulling a passenger train bound northwest, and Talbot was injured. He brought this suit to the district court of Boone county against the Valley Company to recover damages for the injuries received as aforesaid. He had a verdict and judgment, to reverse which the Valley Company prosecutes to this court a petition in error.

1. We can better understand the locality where the accident occurred and the facts and circumstances surrounding the same by consulting the following diagram, roughly prepared from data in the evidence:

IMAGE

The figure A, B, C, D, represents section 26, in township 20 north, and range 6, in Boone county. E, F, is a line drawn north and south through the center of said section. G, H, is a public highway running east and west through the center of said section. R represents the center of said section. The line M, V, represents the track of the Fremont, Elkhorn & Missouri Valley Railroad Company, hereinafter called the “Elkhorn Company,” as located across said section. The line O, V, represents the track of the Valley Company, the plaintiff in error, as located across said section. K and L are the points where the highway, G, H, crosses the two railroad tracks aforesaid. The crossing K is about 1,000 feet west of R, the center of the section. The crossings K and L are about 125 feet apart. The crossing at K is about five feet higher than the crossing at L. A row of trees extends north and south from R towards E. A part of the southeast quarter of said section, lying immediately east of the line R, E, is covered by a grove. The day the accident occurred, Patten and Talbot had been out in the country, doing some work in and about putting up or repairing windmills, and were returning in a wagon in which they had their tools. They drove west along the highway H, G, and the accident sued for occurred at the crossing L. Both men were sane, both had good hearing and good eyesight, and both of them were familiar with the road on which they were traveling, and with the railroad crossings above referred to. On the trial Talbot testified as follows: “Q. Tell the jury what use you made of your senses, if any, in approaching these two railroad tracks. A. That is a question that it is impossible for me to answer. I suppose I used my senses as usual. Q. Just state the facts what you did. A. I cannot state what I did, because I was * * * Q. I want him to state why he cannot tell. A. I remember everything distinctly until I came down near to the mill. I recollect everything that occurred that day. But from there my mind is blank. I cannot recollect it. It is a mystery to me. I have asked the physician why it is. Q. Do you remember of seeing the train? A. I do not. I have no remembrance of seeing the train at all. Q. Do you remember the engine or anything? A. No, sir. Q. Was there anything to prevent you seeing an engine? A. I would not say that there was or that there was not.” Patten testified as follows: “Q. Now, before crossing the Elkhorn track, you may state what, if anything, you did to ascertain whether there was any train approaching. A. Well, before I got to the Elkhorn track, I looked both ways for the train, but I saw none; and when I got up a little closer,--got up to the Elkhorn track,--to cross the track, I looked for the train coming from the other direction from Albion; that is from the northwest. Q. Now, you may state whether you saw that train on the defendant's railroad that came up that day to Albion. Did you see it,--that is, the train going northwest? A. I saw it when it hit me,--hit us. Q. About how far from the defendant's railroad track were you when you first got sight of the train, as near as you can tell? How far the horses' heads were from the train, as near as you can tell? A. Well, they was not very far. Q. How far south of the crossing were they when they first whistled? A. I cannot say. Q. Tell us about how far. A. I should judge they were about 100 feet; something like that. Q. After passing that row of trees, R, E, and looking towards the south, I will ask you if you cannot see clear down to where the Valley Railroad track comes out of the grove all the way so as to see an engine and train coming from that direction? A. Well, I expect you can. Q. Well, don't you know that you can? A. Yes, I guess we can see through there. Q. Your best recollection is that you were in the neighborhood of that row of trees when you commenced looking? A. I might have been by it, and I might have been west of it. I did not take particular notice of that row of trees. Q. You looked up and down the road both ways? A. Yes, sir. Q. Saw nothing; then you drove right on towards the railroad track, did you? A. Yes, sir. Q. When you were going on westward you came to the elevation going up on the Elkhorn track on your way, did you not? A. Yes, sir. Q. From that point looking east,--southeast,--I will ask you if you cannot see clear through the grove along the line of the Valley Railroad track? A. Yes, sir, you can from the Elkhorn track. Q. As you went on that day,--as you drove onto the grade of the Elkhorn track,--I will ask you, if you had looked to the east,--southeast,--if you could not have seen that train if it was anywhere within a mile of you? A. Why, I did not look to the east,--south-east. Q. You know that country pretty well? Answer the question. A. Oh, I might have seen it if I had looked...