Orgall v. Burlington & M.R.R. Co.
| Decision Date | 01 October 1895 |
| Docket Number | 6322 |
| Citation | 64 N.W. 450,46 Neb. 4 |
| Parties | JOSEPH ORGALL, ADMINISTRATOR, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Fillmore county. Tried below before HASTINGS, J.
AFFIRMED.
Webster Rose & Fisherdick and E. W. Metcalf, for plaintiff in error.
T. M Marquett, J. A. Kilroy, and J. W. Deweese, contra.
This is a petition in error and presents for review a judgment of the district court for Fillmore county. The action below was to recover damages on account of the killing of the plaintiff's intestate, Maria Tatro, by an engine operated by the defendant company on the 26th day of June, 1891. At the trial below, before Hastings, J., and a jury, there was a verdict for the defendant at the conclusion of the plaintiff's evidence by direction of the court, and which ruling is the basis of this proceeding.
The facts which the plaintiff's evidence tends to establish are as follows: On the day of the accident the deceased purchased a ticket from the defendant's station agent at Grafton, good to Denver, Colorado, intending to take passage on the regular west-bound passenger train. On being advised by the agent that the train was two hours and twenty minutes late she decided not to wait at the station, and accordingly returned to the village south of the railroad track, going to the house of a friend, Mrs. Haney, and from thence to the store kept by a Mr. Haney. About an hour and a half or an hour and three quarters after the deceased had returned to the village, an extra or wild train approached the station running at a high rate of speed, estimated by some witnesses at thirty-five miles per hour. Regular warning was given of the wild train, and the witnesses agree that the engine whistle was sounded continuously from the time the train reached the first cross street of the village until it had passed the station, and also that the bell was ringing. At the first sound of the whistle the deceased and Mrs. Haney ran hurriedly toward the station, nearly a quarter of a mile distant. As they approached the side track, which is forty-five feet south of the main track, the deceased, who was in advance of Mrs. Haney, took the latter by the hand as if to assist her forward. At that point a Mr. Warren stepped in front of the women and raised his hands as if warning them to stop, although no witness was near enough to hear what, if anything, was said by him. They apparently took no notice of the warnings thus given, but ran toward the station platform on the north side of and adjoining the main track. As they approached the main track Mrs. Haney passed the deceased, and when in the act of crossing the track fell and was struck and killed by the engine. The deceased, who had in the meantime stepped from the sidewalk to the west or left-hand side, stooped forward as if attempting to rescue her companion, when she was struck on the head by the steam chest of the engine and also instantly killed. In addition to the rate of speed of the train in question it is alleged and proved that an elevator situated on the east and opposite side of the street from the sidewalk leading to the station partially obstructed the view from the street of trains approaching from the east, and that the view of the track was on that occasion further obstructed by a freight car by the defendant negligently permitted to stand on said track just west of the elevator above mentioned and partly in the street; also, that the sidewalk across the defendant's right of way, and adjacent to the main track, was so negligently constructed as to leave dangerous holes and spaces therein which were liable to cause passers-by to stumble and fall. It is further charged that the deceased's companion, Mrs. Haney, "was entangled by said dangerous sidewalk and thrown in front of the approaching train, and the deceased, in stooping to assist the former in her emergency, was struck," etc. The answer admits the killing of the deceased at the time alleged, but is in effect a denial of all of the other allegations of the petition.
It is strenuously insisted that there was sufficient evidence for the submission of the cause to the jury, and that the court accordingly erred in directing a verdict for the defendant. We are, however, unable to disturb the judgment of the district court, for the reason that, in our opinion, the petition fails to state a cause of action, and the ruling complained of...
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