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

• Decision Date: 16 January 1894
• Citation: 57 N.W. 767,39 Neb. 27
• Parties: OMAHA & R. V. RY. CO. v. BRADY.
• Court: Nebraska Supreme Court

39 Neb. 27

57 N.W. 767

OMAHA & R. V. RY. CO.

v.BRADY.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. By the statute, railroad companies are given the right to lay their tracks in and across the streets of the municipalities of this state; and this right carries with it the corresponding duty on their part to construct and maintain at all times proper crossings on the streets intersected at grade by their main and side tracks, and neglect so to do would be evidence of negligence which would render the railroad company liable for an injury occurring by reason thereof.

2. In the absence of a municipal ordinance and of express statutory requirements on the subject, whether a railroad company is guilty of negligence in not maintaining a flagman or some other equally safe and efficacious instrumentality at a given street crossing is a question of fact for the jury to determine from the circumstances and evidence in the particular case.

3. Railroads cannot be operated without noise, and, if teams are frightened by the usual noise arising from a prudent and proper management of a train or engine, the railroad company is not liable for an injury resulting from such noise; and whether the noise complained of resulted from a prudent operation of the railroad or its appliances is a question to be determined from the circumstances and other evidence in the case. That the noise complained of was unnecessarily made is not of itself evidence that its making was negligence. To be evidence of negligence, the noise must have been made under such circumstances and surroundings as to time, place, and the situation of the parties as to show a neglect to exercise that degree of care which a reasonable man would have exercised under the circumstances.

4. Issues as to the existence of negligence and contributory negligence and as to the proximate cause of an injury are for the jury to determine when the evidence as to the facts is conflicting, and where different minds might reasonably draw different inferences as to these questions from the facts established. Waterworks Co. v. Dougherty, 55 N. W. 1051, 37 Neb. 373, followed.

5. The opinion of a medical expert may be based (1) on his acquaintance with the party whose condition is under investigation, (2) upon a medical examination of him which he has made, or (3) upon a hypothetical case stated to the expert in court.

6. Some latitude must necessarily be given in an examination of medical experts and in the propounding of hypothetical questions, the better to enable the jury to pass upon the question submitted to them. It is the privilege of counsel in such cases to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed.

7. The argument of counsel to the jury should be limited to the facts in evidence and the reasonable inferences deducible therefrom. Counsel charged with the responsibility of the conduct of a case has certain rights, as well as duties, in the premises. He must use all honorable means to protect his client's interests. He must act honorably and fairly with the court, opposing counsel, and the jury. But he may of right, in his argument, make such comment on the conduct and credibility of witnesses or parties to the suit as the evidence warrants.

8. In order to constitute champerty, the contract between the attorney and his client must not only provide that the attorney shall have a part of the money or thing recovered in the action, but it must also provide that the attorney shall at his own expense support the suit, be responsible for the costs, and take all the risks of the litigation.

9. A railroad company sued for damages, alleged to have been sustained by plaintiff through its negligence, cannot interpose as a defense, that the suit is being carried on by virtue of a champertous agreement between plaintiff and his counsel; this is a defense available only, if at all, to the plaintiff in a suit against him on the contract.

10. The existence of negligence should be proved and passed upon by the jury as any other fact. It is improper for a trial court to state to the jury a circumstance or group of circumstances as to which there has been evidence on the trial, and instruct that such fact or group of facts amounts to negligence. At most the jury should be instructed that such circumstances, if established by a preponderance of the evidence, are proper to be considered in determining the existence of negligence. Railway Co. v. Baier, 55 N. W. 913, 37 Neb. 235, followed.

11. June 27, 1888, Brady was injured through the negligence of the railroad company. No bones were broken, and no injury was visible. He was not confined to his bed until July, 1889, and in the mean time worked at hauling brick and dirt, and indulged some in athletic sports. In the summer of 1889 he was seriously sick with inflammation of the lining membrane of the chest. In March, 1890, he sued the railroad company for damages, alleging that the injury of June 27, 1888, was permanent. At the time of the trial he was suffering from a mortal disease, probably consumption. The jury found his condition at the time of the trial was the result of the injury he received June 27, 1888. Held, that for this verdict to stand, it must have for support competent evidence that Brady's condition at the time of the trial was the probable and reasonable result of the injury received June 27, 1888, and that evidence that his present condition was possibly the result of said injury was not sufficient.

Error to district court, Madison county; Powers, Judge.

Action for personal injuries by George E. Brady against the Omaha & Republican Valley Railway Company. There was judgment for plaintiff, and defendant brings error. Conditional order.

J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Wigton & Whitham, for defendant in error.

RAGAN, C.

George E. Brady sued the Omaha & Republican Valley Railroad Company in the district court of Madison county, for damages for an injury which he alleges he received by reason of the railroad company's negligence on the 27th day of June, 1888, while he was in the act of crossing the railroad company's tracks in the city of Norfolk with his wagon and team. He alleged in his petition that at the time of his injury Norfolk avenue ran east and west through, and was the principal street in, said city; and that the railroad company's main and side tracks crossed said avenue at grade in a northeasterly and southwesterly direction. The grounds of negligence charged against the railroad company are three: “(a) That the railroad company had caused the crossings at the intersection of said avenue and said main and side tracks to become and remain out of repair by removing the planking from between the rails of said tracks at said crossings. (b) That the railroad company had no flagman or other person at said crossing to give warning. (c) That plaintiff was engaged in hauling dirt with his team of horses and wagon upon said avenue, and while so engaged in driving his said team and wagon along and upon said avenue going west, when about to cross said railroad and side tracks upon said avenue, the railroad company, by its servants and agents, negligently, wrongfully, and unlawfully, suddenly, and without warning to plaintiff caused and permitted steam to discharge in great volume, noise, and with hissing sound, while said engine was standing or moving slowly on defendant's said railroad near the north margin of said avenue and public road, and near the plaintiff's said team, which took fright thereat, ran away across and over said railroad and side tracks, and the dirt bed or plank floor of said wagon upon which plaintiff was riding became loose, and fell to the ground, and plaintiff was struck and thrown by reason thereof from and off of said wagon, down under the same, and was run over by said wagon and the wheels thereof.” The defense of the railroad company, aside from admitting its corporate character, location of Norfolk avenue, and its intersection by the main and side tracks of the railroad, was substantially a general denial of the averments of the petition and a plea of contributory negligence upon the part of Brady. Brady had a verdict and judgment, and the railroad company brings the case here for review, assigning numerous errors, of which we notice eight.

1. That the evidence does not establish any negligence on the part of the railroad company which caused Brady's injury.

(a) The Condition of the Crossing. The evidence discloses that the railroad company's track and side tracks cross Norfolk avenue as alleged in the petition. That said avenue was one of if not the main thoroughfare of said city. That it was much used both by the country people and the residents of the city. That some time prior to Brady's accident the railroad company had removed the planking, or a part of it, from between the rails of their tracks at said crossings, and at the date of the casualty the said crossings were not in good condition. That Brady, on the day of his injury, was engaged in hauling dirt from a point west of these crossings, and passed over them with his wagon. That while he was driving west for a load of dirt, sitting on the dirt boards of his wagon, and while about to pass over the crossing of Norfolk avenue and the main track, his horses became frightened at the noise made by escaping steam from the locomotive engine of the railroad company on said main track, ran away, and over the crossings of the said tracks. The chucking and striking of the wheels of his wagon against and between said tracks loosened the dirt boards on his wagon, causing an end of one of them to fall to the ground and the other end to strike Brady on his side, and to knock him off his wagon, one wheel of which passed over his body. It does not clearly appear...