Tsiampras v. Union Pacific Railroad Company

• Decision Date: 14 February 1920
• Docket Number: 20670
• Citation: 176 N.W. 366,104 Neb. 205
• Parties: STAVROS TSIAMPRAS, ADMINISTRATOR, APPELLANT, v. UNION PACIFIC RAILROAD COMPANY, APPELLEE
• Court: Nebraska Supreme Court

176 N.W. 366

104 Neb. 205

STAVROS TSIAMPRAS, ADMINISTRATOR, APPELLANT, v. UNION PACIFIC RAILROAD COMPANY, APPELLEE

No. 20670

Supreme Court of Nebraska

February 14, 1920

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Fred W Anheuser and Will H. Thompson & Son, for appellant.

Edson Rich, C. A. Magaw and A. G. Ellick, contra.

CORNISH J. DAY, J., not sitting.

OPINION

CORNISH, J.

Plaintiff's intestate, going for a pail of water for the section-men with whom he was working, in the country, was struck from the rear by defendant's engine and killed. Action for negligence under the federal liability act. The trial court instructed a verdict for defendant. Plaintiff appeals.

The mere fact that an accident occurs raises no presumption of negligence on the part of either of the parties to it. In probably a majority of the occupations in which men engage, whether in town or country, there is necessarily more or less risk of accident. We can imagine an attempt at absolute safety carried so far as to hinder industry and production needed for the comforts and necessities of life. The farm must be worked even though the colt may suddenly manifest a vicious disposition. Besides, no such attempt is needed, because, if every one exercises that care which the law requires, those accidents which could be avoided will be avoided.

Railroad tracks and switchyards are essentially places of danger. The person employed on or about them assumes those risks of danger naturally and properly incident to the work. Those in charge of moving cars or engines are not ordinarily expected to govern their movements with reference to those so engaged, whose duty it is to look out for trains, so as not to obstruct their movements. One walking along the track, as in the present instance, should use that vigilance which protects him from approaching trains. If, as the evidence indicates, gusts carrying dust might have obstructed his vision, and also the vision of those in charge of the train, then, exercising ordinary care, decedent should have walked to one side of the track for safety. The engineer would be under no obligation to slacken the speed of the train until it would appear to him, as a reasonable man, that the pedestrian was not aware of the approach of the train, or was in immediate danger.

Negligence is alleged as follows: (1) Failure to blow the train whistle or ring the bell. (2) Failure to place slow-up flags on either side of the place where the gang was working. (3) Excessive speed and failure to slow up on approaching the gang. (4) Ordering the decedent to walk down the track when the decedent had selected a safe way. (5) Failure of the gang foreman to warn the gang of the train's presence. (6) Failure to stop the train, after seeing decedent, in time to avoid striking him. We will comment in the order of the charges.

1. The evidence shows that the whistle was blown and the bell rung at the regular place for doing so. It is true that some of the members of the gang swore they did not hear it. They did not swear it was not done. This is not surprising. The train had passed them and gone a considerable distance before reaching its regular place for blowing the whistle. The three men in charge of the train swore positively that the whistle did blow. Their evidence must prevail. Rickert v. Union P. R. Co., 100 Neb. 304; Zancanella v. Omaha & C. B. Street R. Co., 93 Neb. 774, 142 N.W. 190.

2. Slow-up flags were not required. Besides, slow-up flags for the gang would not have avoided the danger to decedent, who was about three-fourths of a mile distant.

3. The speed of 40 miles an hour was not excessive.

4. Defendant did not order decedent, as claimed in plaintiff's brief, to walk between the rails. He was free to walk on either side of the track. Plaintiff introduced evidence that, when decedent started for water, the foreman called him back, telling him that he could not get through in the direction in which he had started. This would not constitute negligence.

5. The evidence shows that the gang had been instructed as to the danger of passing trains. They would know, and be bound to know, the danger without specific instructions. The foreman would not know the exact times that trains would pass.

6. The...