Stanley v. Chi., R. I. & P. Ry. Co.

Decision Date18 March 1925
Docket NumberNo. 23042.,23042.
Citation202 N.W. 864,113 Neb. 280
CourtNebraska Supreme Court
PartiesSTANLEY v. CHICAGO, R. I. & P. RY. CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

“When persons approach a railroad crossing, ordinary care for their own safety requires them to look and listen where it will be of value to look and listen to ascertain if trains are approaching. In the absence of facts calling for the application of the doctrine of ‘the last clear chance,’ one who fails to take such a precaution, without reasonable excuse, and is injured by a collision with a train or engine, may not recover, unless his contributory negligence was slight, and the negligence of the defendant was gross in comparison. Rev. St. 1913, § 7892.” Seiffert v. Hines, 108 Neb. 62, 187 N. W. 108.

The evidence is outlined in the opinion and held insufficient to sustain the verdict.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by Edwin Stanley against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.E. P. Holmes, of Lincoln, for appellant.

McKenzie, Cox & Harris, and Rosewater, Mecham & Burton, all of Omaha, for appellee.

Heard before MORRISSEY, C. J., ROSE, GOOD, and EVANS, JJ., and REDICK and SHEPHERD, District Judges.

MORRISSEY, C. J.

Plaintiff brought this action against defendant to recover for the destruction of his automobile and injuries to himself in a collision, at a road crossing, between plaintiff's automobile and one of defendant's passenger trains. The collision occurred during the daytime on July 10, 1921. Plaintiff was driving in a southeasterly direction and defendant's train was running in a southwesterly direction. The public road and the railroad crossed at right angles. At the intersection the railroad roadbed was several feet higher than the adjacent ground, and plaintiff drove up an ascending grade to reach the intersection of the two roads. The negligence charged against defendant, as stated in plaintiff's brief, is defendant's failure to ring the bell and sound the whistle as required by law.” But, as supplemental to this charge, plaintiff contends that defendant permitted weeds, brush, and trees to grow upon its right of way in such a way as to prevent plaintiff's view, and cut off his observation of the approaching train until he was within a few feet of the rails of defendant's track. Plaintiff had crossed the track at this intersection earlier in the day, and was aware of the presence of the railroad. Plaintiff testified that he was on the lookout for a train, but did not see it until his automobile was within 4 or 5 feet of the rail, when his wife, who was riding in the car with him, made an outcry and jumped from the automobile; that the train was then only 25 to 40 feet distant; that he disengaged the clutch and applied the brake, but, before he could bring the car to a full stop, the front end of the car had passed over the nearest rail; that he threw the lever into reverse, but before he could back the car from the track, it was struck by the oncoming locomotive, which was moving at the rate of 40 miles an hour. The cause was submitted to the jury, which returned a verdict in favor of plaintiff, and defendant prosecutes this appeal from the judgment entered thereon.

There is but one substantial issue presented, namely: Is the evidence sufficient to support the verdict? In support of plaintiff's charge of negligence, there is evidence from which the jury might find that the locomotive bell was not rung for the crossing and that the whistle was not blown, as required by statute. Indeed, according to plaintiff's testimony, the whistle was not blown until plaintiff was within 4 or 5 feet of the rail and the locomotive not more than 40 feet distant from the intersection, so we will assume that there was evidence to substantiate the charge of negligence made in plaintiff's petition. As to the presence of the obstructions alleged to have been upon defendant's right of way, the evidence is conflicting. Plaintiff testified that the weeds, brush and trees growing upon the right of way were 10 or 12 feet high, and this testimony is supported by that given by his wife...

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