Rickert v. Union Pacific Railroad Company

• Decision Date: 17 November 1916
• Docket Number: 18763
• Citation: 160 N.W. 86,100 Neb. 304
• Parties: ANNA RICKERT, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

160 N.W. 86

100 Neb. 304

ANNA RICKERT, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS

No. 18763

Supreme Court of Nebraska

November 17, 1916

APPEAL from the district court for Platte county: GEORGE H. THOMAS JUDGE. Reversed.

REVERSED.

Edson Rich, A. G. Ellick, B. W. Scandrett and Albert & Wagner, for appellants.

Reeder & Lightner, contra.

OPINION

BARNES, J.

The plaintiff, as administratrix of the estate of Carl Rickert her deceased husband, commenced this action in the district court for Platte county against the Union Pacific Railroad Company, Thomas Campbell, Hugh Branson, George McQuade, N. J. Buzza and C. C. Covingtor to recover damages for the alleged negligent killing of her husband. A trial to a jury resulted in a verdict and judgment for $ 10,000 against all of the defendants except C. C. Covington. A motion for a new trial was overruled, the defendants excepted, and have brought the case to this court by appeal.

The appellants' first contention is that the trial court erred in refusing to permit the Union Pacific Railroad Company to remove the case to the federal court. It is fairly inferable from the record that the individual defendants were sued jointly with the railroad company in order to prevent a removal of the cause, but we find that the case may be determined without regard to that assignment of error, and therefore it will not be further considered.

The record discloses that the accident, which resulted in the death of Carl Rickert, occurred on the 29th day of October, 1912, at the village of Benton, in Platte county, where the through trains of the defendant railroad company are not scheduled to stop; that plaintiff's decedent who was driving an automobile on a public road, ran against the engine of the second section of defendant railroad company's train No. 9 at a crossing. The train was a through train carrying mail and express matter over defendant railroad company's line of road. After describing the buildings, the equipment of the railroad company, and the surroundings at the place where the accident occurred, the petition alleged that the buildings, structures and box cars were negligently and carelessly so placed as to completely obstruct the view of defendant railroad company's track to the east from any one traveling on the public road referred to; that, on the day when the accident occurred, Carl Rickert, the deceased, was proceeding west along the public highway above described, driving an automobile, and observing due care; that train No. 21 stood on the side track; that unknown to said Rickert, but known to the defendants N. J. Buzza, George McQuade and C. C. Covington, the second section of train No. 9 was approaching said crossing at a high rate of speed; that it was the duty of defendants to let train No. 21 stand at the depot until train No. 9 had passed, but, in reckless disregard of such duty, they carelessly and negligently began to move said train forward, and while Carl Rickert was proceeding westward upon said public highway, as aforesaid, said train No. 21, under the control of the defendants, was carelessly and negligently moved westward parallel with him, making a great deal of noise, and completely obstructing the view to the east and northeast; that the defendant C. C. Covington, acting as a switchman, stood at a switch upon the railroad crossing; that, notwithstanding the dangerous nature of said crossing, it was entirely unguarded, except by the said switchman, and it was his duty to warn persons approaching said crossing of their danger; that, when said Carl Rickert reached the corner of the public road, he turned north and approached said track; that he was running his motor at a moderate rate of speed, not more than 10 or 15 miles an hour; that he was in plain sight of the conductor and engineer, above named, and of said switchman; that as he approached said track the engine of train No. 21 was 70 or 80 feet east of him, and still running at a very low rate of speed, so that said deceased had ample time to cross the tracks ahead of it; that said switchman, conductor and engineer on No. 21, above named, were aware of the danger which threatened the deceased, and, although it was their duty to warn him of such danger, they carelessly and negligently failed and refused to do so; that at the same time, on the north main-line track, the second section of train No. 9, operated by the defendants Thomas Campbell and Hugh Branson, was carelessly and negligently and in violation of the law approaching said crossing at a rate of speed of more than 60 miles an hour; that, by reason of the situation above described, said train No. 9 was completely concealed from decedent's view, and such noise as it made was drowned by the noise of the local train; that it was impossible for decedent to see or hear it, and he did not see or hear it until it was almost upon him; that under the circumstances he had a right to believe that the defendants N. J. Buzza and George McQuade and C. C. Covington, or one of them, would warn him if another train was approaching from the east, yet he received no warning; that upon seeing said train from the east he immediately applied his brakes, but before the said car could be stopped said section of No. 9, so approaching him, at an excessive rate of speed, as aforesaid, ran into his said car, completely destroying same and instantly killing the said Carl Rickert. The plaintiff prayed for a judgment of $ 30,000.

The answer of the railroad company, after denying each and every allegation in said petition contained, not expressly admitted in said answer to be true, denied that its buildings were so located as to obstruct the view of defendant railroad company's tracks, and admitted that plaintiff's decedent was instantly killed by coming in contact with its train No. 9. The answer then alleged that the death of Carl Rickert and the destruction of his automobile were due solely to his carelessness and negligence, and not to any carelessness or negligence on the part of defendant railroad company. The answers of the other defendants were identical with the answer of the defendant railroad company. The reply of the plaintiff to the several answers of the defendants was a general denial.

We have carefully stated the substance of the pleadings because of the conclusion announced by the opinion.

It is the defendants' contention that the verdict and judgment are not sustained by the evidence. The record discloses that defendants' railroad, where it passes through Benton, consists of two main-line tracks a sufficient distance apart to maintain a passing track between them. They are laid on a grade about four feet above the level of the surrounding country. The village is almost wholly south of the tracks, and between the town and the south main-line track is a street or public highway, called "Front street," which runs westerly until it passes the depot, where it turns north across the tracks at a distance of 137 feet from that structure. After crossing the tracks it runs westerly along the right of way. The depot is 60 feet long, and is 24.5 feet south of the south main-line track. At a short distance east is a small toilet room about 9 feet square, and 137 feet east of the toilet room is a coal shed about 60 feet long. A considerable distance east of the coal shed there is an elevator called the "Hord" elevator. Some distance farther east is another elevator. The east-bound trains of the defendant railroad company use the south mainline track, and the west-bound trains are run on the north main-line track. About the time the accident occurred defendant railroad company's train No. 21 had arrived at the depot from the east, had discharged its passengers and baggage, and, according to the rules of the company, had backed down to the east and stood on the passing track in order to allow the second section of train No. 9 to pass on the north main-line track.

Plaintiff's witness, John Rickert, testified, in substance, that the deceased at the time of his death was 29 years old; that his health was good, and he was capable of earning $ 1,000 or $ 1,500 a year; that deceased's hearing and eyesight were both good; that he lived on a farm in plain sight of defendant railroad company's tracks; and that he had no children.

Henry Hoppe, one of plaintiff's witnesses, testified, in substance, that he was living in Benton in October, 1912, and was within 125 feet of the point where Rickert was killed that when he first saw Rickert he was standing by his automobile; that he had difficulty in getting his car started, and when he got it started he turned around and traveled westward. Witness was a little west of the point where the wagon road turns north across the tracks. He testified that, while traveling west toward the corner where he made the turn, Rickert was going from 12 to 15 miles an hour; that he saw Rickert's car as he proceeded north over the tracks, and that as Rickert was traveling north the engine of train No. 21 was about 75 feet from the place of the accident. Witness said he paid no attention to this train as to whether it was in motion or not. He stated that the wagon road is not less than four feet lower than the railroad tracks, and that as it turns north it starts to raise to the level of the railroad grade from 30 to 35 feet from the track. When witness saw Rickert turn north to cross the tracks, he called to him and warned him. When he called to Rickert his head was turned toward the northeast. The wind was blowing from the northwest, and witness was located close to and west of Rickert. Witness was talking with Henry Heible when he saw Rickert go by. Witness saw train No. 9 when he saw Rickert turn north. Wh...