Union Pac. R. Co. v. Ruzicka

• Decision Date: 22 July 1902
• Parties: UNION PAC. R. CO. v. RUZICKA.
• Court: Nebraska Supreme Court

65 Neb. 621

91 N.W. 543

UNION PAC. R. CO.

v.RUZICKA.

Supreme Court of Nebraska.

July 22, 1902.

Syllabus by the Court.

1. A witness accustomed to observing the running of trains, and who observed one at the time of an accident, and noticed its speed, may give his opinion, together with all the facts on which it is based, as to the rate of speed at which the train was running. Railroad Co. v. Clark, 42 N. W. 703, 26 Neb. 645.

2. Proof of adoption of an ordinance of a city is indispensable where objection is made on that ground.

3. Evidence held not to require a peremptory instruction for defendant on the ground of contributory negligence.

4. Where the measure of damages is fixed, an incidental mention in the instructions of a penalty for failure to give signals is not prejudicial error.

5. Instruction that a failure to give signals of warning of train, as required by city ordinance, should be considered in deciding as to negligence in killing cattle, is not erroneous because of a failure to repeat, in that connection, an instruction that to authorize a recovery such negligence must be the proximate cause of the damage.

6. A similar instruction as to running trains faster than an ordinance allowed upheld against a similar objection.

7. Where plaintiff's evidence, if believed, warrants an instruction as to the effect of “sudden and unexpected danger,” it is not error to give such instruction in proper terms.

8. In the absence of visible or audible evidence of danger, there is no requirement that a passer stop, as well as “look and listen,” before attempting to cross railway track.

9. Not error to refuse to charge that attempting voluntarily to cross in front of a train on the assumption that its speed was no greater than a city ordinance allowed was negligence, where there was no evidence of plaintiff's acting on such assumption.

Commissioners' opinion. Department No. 1. Error to district court, Dodge county; Grimison, Judge.

Action by Anton Ruzicka against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

John N. Baldwin and Edson Rich, for plaintiff in error.

Button & Cook, for defendant in error.

HASTINGS, C.

In this case plaintiff in error complains of judgment of the Dodge county district court in favor of one Anton Ruzicka and against the railroad company for $70 and costs for the killing of two heifers upon the company's track by one of its trains. Of all the 30 assignments of error only 13 are now urged. Of these the first three, Nos. 4, 5, and 6, are as to admission of statements as to the speed with which the train was going at the time of the hitting the cattle. No authority is cited by plaintiff in error with regard to this matter. In each instance the witnesses showed familiarity with the locality, and observation of passing trains, and each testified that the train was running from 30 to 35 miles an hour. There seems no objection to taking the opinion of a well-informed witness as to the speed at which a train was going when the witness observed it, where the facts on which such an opinion is based are fully stated, as in this instance. Railroad Co. v. Clark, 26 Neb. 645, 42 N. W. 703.

Errors Nos. 8 and 9 refer to the instruction of certain sections of an ordinance relating to railway trains in the city of Fremont, within whose limits the damage occurred. The bill of exceptions is certified to as containing all the evidence offered at the trial. The only reference to this ordinance is found on page 76 of the record, as follows: “Plaintiff offers in evidence Sec. 3. of Ordinance 349 of the city of Fremont, Nebraska, marked ‘Exhibit 2.’ Mr. Rich: Defendant objects, as incompetent, irrelevant, and immaterial, and as tending to prove no issue in the case, and not supported by any allegation in the petition. (Objection overruled. Exception taken.) Exhibit 2 received, and read in evidence, as follows: ‘The bell of each locomotive engine shall be rung continually while said locomotive engine is in motion and moving upon any railroad or railway track inside of the city limits.’ Mr. Button: We now offer in evidence section four of Ordinance 349, concerning railroads, of the city ordinances of the city of Fremont, Dodge county, Nebraska, marked ‘Exhibit 3.’ Mr. Rich: Defendant objects, as incompetent, irrelevant, and immaterial, not being supported by any proper allegation in plaintiff's petition. For the further reason that there is no proof as to the validity or authority of the pretended ordinance. (Objection overruled. Exception taken.) Exhibit 3 received, and read in evidence, as follows: ‘Sec. 4. No locomotive engine or railroad car shall be propelled at a greater speed on any railroad or railway track in the city than at the rate of six miles per hour.’ ” The exhibits themselves are not preserved except as they appear above. There is a subsequent reference, in offering a section which was excluded, to a “Revised Ordinance of the City of Fremont.” No such book, however, is brought up or proved to exist. As regards section 4, the objection was expressly made that the proof was incompetent, and that there was nothing to establish the validity or authority of the ordinance. As the matter stands in the record here, that is certainly true, and it was error, and prejudicial error, on the part of the trial court to permit the reading of the section in question without proof of its authenticity as a part of an ordinance of the city of Fremont....