Stading v. Chicago, St. Paul, Minneapolis & Omaha Ry. Company
| Decision Date | 21 March 1907 |
| Docket Number | 14,691 |
| Citation | 111 N.W. 460,78 Neb. 566 |
| Parties | J. C. STADING, APPELLEE, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
B. T White, C. C. Wright and B. H. Dunham, for appellant.
J. J McAllister and C. A. Kingsbury, contra.
OLDHAM, C. AMES and EPPERSON, CC., concur.
This was an action for damages for the killing of 13 head of cattle on defendant's right of way within the depot grounds and switch limits of the village of Hubbard, Dakota county, Nebraska. There was a trial of the issues to the court and jury, and a verdict and judgment for the plaintiff. To reverse this judgment defendant appeals to this court.
The facts underlying the controversy are that on the morning of July 10, 1903, between the hours of 4 and 5 o'clock, two of defendant's freight trains passed through the village of Hubbard going eastward at a rapid rate of speed. The first train was a regular through freight, which, from the evidence, killed four or five head of cattle, none of which, however, were shown to have been plaintiff's cattle. The special, which followed the regular train in 10 or 20 minutes, ran onto and killed 13 head of plaintiff's cattle at a bridge which crossed a running stream about 500 yards east of the depot within the corporate limits of the village. The negligence relied upon as a ground for recovery was the careless and reckless operation of the train, and a failure to keep a proper lookout for animals which might have strayed upon the right of way within the switch limits. The evidence shows that the track extends in a straight line for about one mile west of the point of the injury. It also shows that from the depot to the bridge the track is ditched on each side for drainage purposes, and that these ditches increased in width and depth as they approached the banks of the stream at the bridge; that wing-fences connected the bridge with the right of way fences which extended west from the bridge, so that when the stock went down the track to the bridge they were prevented from escaping by the bridge, ditches and wing-fences. There is an allegation in the petition that the train was running at a rate of speed in violation of an ordinance of the village of Hubbard, but this allegation was denied, and, on objection of defendant, the purported ordinance of the village regulating the speed of trains within its corporate limits was excluded from the jury, and the cause was submitted on the allegations of negligence in running the train at a high rate of speed without keeping a proper lookout for trespassing animals at the place of injury.
There was a conflict in the testimony as to the exact time at which the train passed through the village. Two of plaintiff's witnesses testified that it was about 5 o'clock in the morning; that it was daylight, and that it would have been possible to have seen the cattle from a point a mile west of the bridge. Defendant's engineer and fireman, on the contrary, testified that the train passed the station at about 4:25 A. M.; that it was foggy and misty and that, although keeping a careful lookout, they were unable to discover the presence of the cattle on the track until they had passed the depot and were within about 500 feet of the cattle. They also testified that, after discovering the stock on the track, they whistled, turned on the air brakes and took all proper precautions to stop the train, that the cattle ran along the track to the bridge, where they were overtaken and some of them carried across by the engine; and that two freight cars were derailed by the accident. Plaintiff offered in his behalf the testimony of one Fred Bliss, who claimed that he was a fireman on the train at the time the cattle were killed, and that no effort was made to check the speed of the train when the cattle were discovered. This witness was flatly contradicted by both the engineer and fireman, who testified that he was not on the train at all. Other evidence was introduced tending to show that he had never been employed as a fireman by the defendant company until the month of August following the accident. If plaintiff's right of recovery depended on the uncorroborated statements of this witness, we would agree with the contention of defendant that his testimony was so improbable, so flatly contradicted, and so fully impeached, that, standing alone, it would not support a verdict for the plaintiff. The evidence showed that ...
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