Shults v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 23 January 1909
• Docket Number: 15,443
• Citation: 119 N.W. 463,83 Neb. 272
• Parties: WALTER O. SHULTS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

119 N.W. 463

83 Neb. 272

WALTER O. SHULTS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT

No. 15,443

Supreme Court of Nebraska

January 23, 1909

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

J. E Kelby, Halleck F. Rose, Frank E. Bishop and Fred M. Deweese for appellant.

Shepherd & Ripley, contra.

OPINION

FAWCETT, J.

On February 28, 1906, the yards of defendant in the city of Lincoln, in which freight trains were made up and freight cars weighed, consisted of a network of tracks, which, by reason of limited area, ran very close together. By reason of the large number of trains and cars handled in such yards, both night and day, it was a very busy place, and a very dangerous place for persons not familiar with the business of the yards. It was used exclusively for the purposes of defendant, and was not in any manner open to the public. On the evening of that day, some time between 7:30 and 10 o'clock, the plaintiff went to the night yardmaster, and, as plaintiff testifies, "asked him if he could tell me where Kimballs' two cars were, and if I could get permission to go and see him; that I had some business to transact, and he told me they was over northeast. I believe he said X six, or six X, something. If they are not on that track, they are on the scale track, in the neighborhood. He said: 'You go down in there, and some of the hands will show you where they are.' I went down there, and got there without any accident. I was pretty cautious not to have any. I kept track of the tracks wherever I went across. * * * I found a man there with a brakeman's lantern. * * * I asked him where Kimballs was, and he said they were over in the car, and showed me the light in the car door. * * * I went right down to the car and got in. I found my cousins there." It seems that the Kimballs were cousins of plaintiff, and were shipping two cars of freight from Palmyra to York. One of the cars was what is called an "emigrant" car. In one end there were five horses and three mules, standing crosswise in the car, and tied to a piece of 2 by 4 spiked to the side of the car. The other end of the car contained farm implements and household effects. The middle of the car between the two side doors was a clear space where the Kimballs were riding, and where it appears they intended to sleep that night. The horses and mules were separated from the rest of the car by two pieces of 2 by 8 and two pieces of 2 by 4 timbers across the car, fastened with 20-penny spikes. After entering the car plaintiff and the Kimballs sat down and engaged in friendly conversation. About 15 or 20 minutes after they had seated themselves the car in which they were seated suddenly received a severe jolt by having other cars bumped against it, the result of which was that the horses and mules were thrown off their feet, their tie straps and ropes broken, and the animals precipitated through the barricade, completely breaking it down. Plaintiff and his cousins testified that one of the mules fell across plaintiff and the other animals upon top of the mule, the result being that plaintiff was so severely injured that he was laid up for a number of months, and, as he claimed, was not entirely well at the time of the trial. The trial resulted in a verdict and judgment for plaintiff for $ 1,000, from which judgment defendant appeals.

There is no dispute that plaintiff received the injury complained of, and in the manner above stated. Plaintiff argues that the shock to the car was so great as to show negligence on the part of the defendant. The testimony of the train crew doing the switching is that they had been weighing the cars upon that track. The weighing was done by pushing the cars up an incline to an elevation of some five or six feet, and, when the top of the elevation was reached, uncoupling them, one at a time, and permitting them by gravitation to pass down and over the scales, which weighed each car automatically as it passed over. The evidence also shows that, in order to permit a correct weighing by the automatic scales, a car must pass over it at a low rate of speed; that a speed of even five or six miles an hour would be so great that the scales would not correctly weigh the car. The members of the train crew all testified that on that evening, while handling and weighing the cars which caused the injury, the work was done in the usual and customary manner, no greater speed or bumping of cars occurring than was customary in the yards.

When both sides had rested, defendant moved the court to instruct the jury to return a verdict in favor of the defendant, which motion was overruled. The question as to whether or not the court erred in overruling this motion depends entirely upon the duty which defendant owed plaintiff at the time he received the injury complained of. The night yardmaster was called by defendant and interrogated as to what took place at the time plaintiff received his license to enter the yards. He says: "The gentleman that came into my office asked me about a car that was shipped from Palmyra to York. Q. Anything said about who was with it? A. Well, not that question. That was the first question that the gentleman asked me, and I asked the bill clerk if we had anything of that description, and he said we had a car of emigrants that came in from Palmyra on 3, and that the car was going to York. So I then told the gentleman. I told the gentleman that the car was there, and he asked me where he could find it. He said that the car was shipped by his cousin, and that he wanted to see him, asked me about where the car would be situated, and I told him that the car would have to be weighed here, and it would undoubtedly be on X 6. Q. That the scale track? A. The scale track. At least, if it wasn't there now, it soon would be. Well, he said that he guessed he could find it all right, and he asked me was the scales situated where they formerly was near the same house, and I told him 'Yes,' and I said to him, I said, 'You belong with the car?' and he said, 'It is my cousin's car, and I want to see him.' He says, 'I live here in town, and they are shipping through, and I haven't seen him for some time, and I want to see him.' And I said, 'Well, you understand this is a very dangerous place here,' I said, 'for anybody to be prowling around through the yard.' Q. About what time was it? A. This was, I should say, about 7:30. I know I had just got done my little preliminaries for starting the men at work at 7 o'clock after coming to the office and sitting down to the desk. He said he realized that, and I said, 'If you go down into the yards, you go at your own risk,' and he smiled, and started out of the office; and I said, 'You are not even safe right here in the office.' I said that in a bantering way more than anything else, because I thought he was ignoring what I said to him. I said, 'You are not even safe right here in the office in the Lincoln yard.' With that he turned and went out of the office. I did not see the man again until he was taken out of the car."

Plaintiff on redirect examination, while testifying in chief, was asked this question: "Q. Did you have any conversation with this overseer or yardmaster, the man that directed you about the dangers of the place? A. Well, not only he said I would have to be pretty careful. Q. Were you careful? A. I was. As I stated once before, I went up between the tracks where the brakey walks, so in case a collision or anything of that kind comes with the cars I would be out of danger." On recross examination he testified: "Q. You say that the man did warn you that that was a dangerous place? A. Yes; he said I would have to be careful. Q. Well did he say anything more than that? A. Not that I recollect; no, not only giving me the directions. Q. But about the taking care? A. Sir? Q. About taking care, or about the risk of the place? A. No, sir; he didn't say anything, only he says you want to be careful, it is dangerous, something of that kind. Q. You don't pretend, then, to remember all that he said about that? A. Well, that is in the neighborhood of all he said." Plaintiff was placed on the stand in rebuttal, and...