Omaha & Republican Valley Railway Co. v. Krayenbuhl
| Decision Date | 19 May 1896 |
| Docket Number | 6384 |
| Citation | 67 N.W. 447,48 Neb. 553 |
| Parties | OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. IDA L. KRAYENBUHL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Butler county. Tried below before WHEELER, J.
REVERSED AND REMANDED.
J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.
E. R Dean, A. J. Evans, and E. W. Hale, contra.
This was an action brought under chapter 21, Compiled Statutes, by Ida L. Krayenbuhl, as administratrix of the estate of John Krayenbuhl, deceased, against the Omaha & Republican Valley Railway Company, to recover on account of injuries resulting in the death of said decedent. There is no necessity of reviewing the whole case in detail, because many questions presented in the district court have since the trial there been decided by this court in other cases. A brief statement of the evidence is, however, essential to a consideration of the questions which we deem it necessary to pass upon.
John Krayenbuhl, the deceased, was a section foreman in the employ of the railway company. During the forenoon of the 18th day of January, 1892, he was proceeding westward along the track of the railway company on a hand-car carrying a railway rail, and accompanied by one man under his direction and control. Snow was falling and a wind prevailed. The depth of snow and the velocity and direction of the wind are matters concerning which the evidence is conflicting; but these facts are not very material to the questions of law presented. The track, after pursuing a straight course to the westward for some distance, crossed a highway, and soon thereafter curved to the south, following in a general way the meanderings of a stream. In its course it passed through some cuts. Krayenbuhl and his companion, Martin, upon entering these cuts found that the track was obstructed by snow. Krayenbuhl sent Martin back toward the east with a flag to warn approaching trains, and proceeded to shovel snow from the track ahead of the hand-car, pushing the hand-car on as he progressed. When Martin, carrying the flag, had gone something over a hundred yards east of the hand-car, a train consisting of a locomotive and way car, running at a speed estimated by different witnesses at from eighteen to forty-five miles per hour, approached from the east. Martin signalled the train to stop and Krayenbuhl, evidently on hearing the train approach, removed the rail from the hand-car and was in the act of removing the hand-car from the track, when the train struck him, breaking his neck and killing him. The negligence alleged was in running the train at a dangerous rate of speed, in failing to give warning of its approach, and in disregarding the signal given by Martin. There are some other allegations of negligence, but proof in support thereof was excluded by the district court, and these it is not necessary to state. The point where the accident occurred was not within any town or city, and it has been repeatedly held that no rate of speed is of itself negligence under such circumstances. (Burlington & M. R. R. Co. v. Wendt, 12 Neb. 76, 10 N.W. 456; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N.W. 796; Missouri P. R. Co. v. Hansen, 48 Neb. 232, 66 N.W. 1105.) The foundation of the action must therefore be in failing to give signals of the approach of the train and in the alleged failure to obey the signal of Martin to stop. A question much argued is as to whether the deceased and the engineer in charge of the train were fellow-servants. If they were so as a matter of law, a summary disposition of the case might be made; but the rules announced in Union P. R. Co. v. Erickson, 41 Neb. 1, 59 N.W. 347, are applicable to this case and determine the question adversely to the contention of the railway company. We are therefore required to consider the case more with regard to details than the principal arguments of the railway company, if well founded, would require.
There is a conflict in the evidence as to whether the statutory signals were given of the approach of the train to the highway east of the point where the accident occurred. Several witnesses testifying on behalf of the plaintiff say that they heard no such signals. The...
To continue reading
Request your trial