Spears v. Chi., B. & Q. R. Co.

• Decision Date: 05 February 1895
• Parties: SPEARS v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

43 Neb. 720

62 N.W. 68

SPEARS

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. Because the jury has drawn one inference rather than another from the evidence, this court will not substitute the inference it might have drawn, had it been the triors, for the one made by the jury.

2. The mere fact that a man is found dead under a railroad car does not raise the presumption that he came to his death through the negligence of the railroad company.

3. In a suit by an administrator against a railroad company for negligently causing the death of his intestate, there is no presumption of law that either party was guilty of negligence.

4. Negligence is a cause of action or defense, and must be proved by the party alleging it.

5. If there is any presumption of law in such matters, it is that all parties act with ordinary care, and such presumption continues until overthrown by evidence.

6. Whether a certain act or omission is or is not competent evidence of negligence is for the court, but whether such evidence convicts a party of negligence is for the jury. Railway Co. v. Baier, 55 N. W. 913, 37 Neb. 235;Waterworks Co. v. Dougherty, 55 N. W. 1051, 37 Neb. 373;Railway Co. v. Craig, 58 N. W. 209, 39 Neb. 601,--followed.

Error to district court, Lancaster county; Hall, Judge.

Action by Charles W. Spears, administrator of the estate of Edward Pasby, deceased, against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant. Plaintiff brings error. Affirmed.Davis & Hibner, for plaintiff in error.

Marquett & Deweese, for defendant in error.

RAGAN, C.

O street extends east and west through the city of Lincoln. The Chicago, Burlington & Quincy Railroad Company, hereinafter called the “Railroad Company,” has two tracks which cross this street at right angles and at grade. One of these tracks will hereinafter be called the “Freight Track,” and the other the “Scale Track.” The scale track is some 8 or 10 feet west of the freight track. On and prior to October 10, 1890, the railroad company kept a watchman at the intersection of these tracks with the street aforesaid, and had erected at or near the intersection of these tracks with said street a gong for the purpose of giving notice to persons traveling on said street of the approach of trains to said street on said track, and just west of the scale track had two headlights, with reflectors, erected in such manner that one of said reflectors would throw the light towards the east on said O street, and the other towards the west on said O street. On and prior to the date aforesaid one Edward Pasby resided in that portion of Lincoln lying west of said scale track; and between 7 and 9 o'clock in the evening of said day Pasby went into a saloon situate some considerable distance--perhaps one-half mile--east of the freight track, and purchased a bottle of whisky. About 9 o'clock of the same evening Pasby was found dead under a freight car on the freight track, some 20 rods south of the point where such track crosses said O street. This action was brought by Charles W. Spears, Pasby's administrator, against the railroad company for damages, on the alleged ground that Pasby's death was caused by the negligence of the railroad company. The railroad company had a verdict and judgment, and the administrator prosecutes to this court proceedings in error.

1. One of the errors assigned is that the verdict is contrary to the evidence. The theory of the administrator was and is that about 8 o'clock in the evening of said day Pasby was proceeding towards his home, walking west on the sidewalk on the north side of O street, when he was struck by a freight train backing south on the freight track. He imputes to the railroad company negligence in the premises, as follows: (a) That at the time Pasby was struck by the freight car on the freight track there was a train of cars standing on the scale track, which train obstructed the light of the reflector, and left the sidewalk where Pasby was in complete darkness. If the jury had made a special finding that the railroad company on the evening of October 10, 1890, at any time between the hours of 7 and 9 o'clock of said evening, had by a train of cars on the scale track shut off the light of the reflector from O street east of said scale track, it is very doubtful if the evidence in this record would support such special finding; and as the finding of the jury is, in effect, that the railroad company did not obstruct such light by a train on said scale track at said time, we certainly cannot say that such finding is wrong, under the evidence. If it be conceded that there was some evidence which tended to show that the railroad company on the date and between the hours aforesaid, by cars on the scale track, shut off the light from the reflector which would otherwise have lighted O street east of the scale track, still there is no evidence in the record which shows, or tends to show, that Pasby's death resulted from, or was contributed to by, such action of the railroad company in obstructing said light; and, beyond all question, we cannot say that the jury drew the wrong inference from the testimony before them on the subject. Whether the railroad company shut off the light at the time and in the manner contended by the administrator was for the jury; and if the jury found that the light was not shut off as claimed by the administrator, we cannot say the finding was wrong. If the jury was of opinion that the light was, during a portion of the time specified, shut off by the railroad company, then we cannot say that the jury was wrong in inferring or finding that the shutting off of said light did not contribute to the death of Pasby. (b) That the gongs at the intersection of said street and said railroad tracks were at the time of Pasby's death out of repair; and (c) that the watchman was not on duty at the time Pasby was killed. There is no evidence in the record that these gongs were out of repair, nor that the watchman was not on duty at the time Pasby was killed. (d) That the freight car under which Pasby...