Portis v. Chicago, M., St. P. & P.R. Co., No. 33410

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; SIMMONS
• Citation: 158 Neb. 28,62 N.W.2d 323
• Docket Number: No. 33410
• Decision Date: 22 January 1954
• Parties: PORTIS v. CHICAGO, M., ST. P. & P. R. CO.

Page 323

62 N.W.2d 323 158 Neb. 28 PORTIS
v.
CHICAGO, M., ST. P. & P. R. CO. No. 33410. Supreme Court of Nebraska. Jan. 22, 1954.

Page 324

Syllabus by the Court.

1. The Minnesota rule as to contributory negligence pleaded and proven by the defendant here is as follows: If the plaintiff failed to exercise the care that a person of ordinary prudence would have exercised under similar circumstances, he was guilty of negligence; and, if his negligence contributed, proximately, in any degree to the injury, as a cause, he was, in law, guilty of contributory negligence, and cannot recover.

2. The Minnesota rule is that a plaintiff's negligence is sufficient to bar a recovery, if it proximately contributes to the result in any degree.

3. When the negligence of the party seeking to invoke the last clear chance rule is active and continuous as a contributing factor up to the time of the injury, the last clear chance rule has no application.

[158 Neb. 29] Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellant.

Robert E. McCormack, Robert D. Mullin, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action for property damages resulting from a collision between a trailer-tractor unit and a train of the defendant. Issues were made and trial had resulting in a judgment for plaintiff. Defendant appeals. We reverse the judgment and remand the cause with directions to dismiss.

The accident happened at Owatonna, Minnesota. Plaintiff was the owner of the tractor. Union Transfer Company was the owner of the trailer. Its claim is assigned to the plaintiff. Plaintiff sues on the two alleged causes of action. The equipment was driven by an employee of Union Transfer Company. A Minnesota statute provides, in case of accident, that the driver is deemed the agent of the owner. The act of the driver is accordingly here deemed by the parties to be the act of the plaintiff on both causes of action.

Defendant moved for a directed verdict at the close of plaintiff's case and at the close of all the evidence. These motions were overruled. Defendant assigns these rulings, among others, as error.

Page 325

We consider the evidence as it stood at the close of the trial of the case.

Defendant's tracks run through the city of Owatonna in a northwest-southeast direction and in that direction cut across North Street and Cedar Street slightly west of the intersection of the two streets. North Street runs east and west. Cedar Street runs north and south. The right-of-way is 100 feet wide. Plaintiff's driver approached[158 Neb. 30] the scene of the accident from the west on North Street. From that direction on North Street there is first a standard 'cross buck' railroad crossing sign on the right-hand side (or south), then a side track, then the main-line track, then a second side track, and then another 'cross buck' sign on the left or north side of the street. The distance between these two 'cross buck' signs is stated at about 96 feet.

The distance between the south siding and main track widens slightly to the southeast and is not definitely shown by any testimony. In between these two tracks on North Street and on the right-hand or south side is a pole upon which there was, at the time of the accident, a no-thoroughfare sign, the exact wording being in dispute.

Between these two tracks on the defendant's property to the south of North Street is a dirveway called the cut-off road, which runs through to Cedar Street. It was originally intended for the use of the defendant and the Owatonna Canning Company, and has been and was being used up to the time of the accident by the public to go from North Street to Cedar Street. The canning company's places of business are to the west of the right-of-way on both sides of North Street.

The accident happened on the morning of January 5, 1951. It had been and was then snowing, and snow covered the tracks. The depth of the snow was fixed by plaintiff's witnesses at 8 inches and by defendant's witnesses at 3 to 5 inches.

Plaintiff's driver came to Owatonna to pick up a load of freight for Nebraska. He came east on North Street and stopped at the office of the canning company where he was told to locate the foreman in one of the buildings, which is not definite in the record. He then drove east past the cross buck sign, and saw both of the signs. He crossed the west-side track. He saw a freight car on the track to his right where men were unloading freight into a cannery building. He went to the left of the pole between the west side and main tracks and pulled in to [158 Neb. 31] the right-of-way property. In doing so he followed vehicle tracks leading to Cedar Street that were there in the snow. He stopped in those vehicle tracks so as to leave the equipment almost parallel to the main-line track and with the left-rear end of the trailer fouling the...