Varnum v. Union Pacific Railroad Company

• Decision Date: 24 June 1924
• Docket Number: 22785
• Citation: 199 N.W. 503,112 Neb. 340
• Parties: RAY J. VARNUM, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

199 N.W. 503

112 Neb. 340

RAY J. VARNUM, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS

No. 22785

Supreme Court of Nebraska

June 24, 1924

APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Reversed.

REVERSED.

C. A Magaw, Thomas W. Bockes and Douglas F. Smith, for appellants.

Abbott Rohn, Robins & Dunlap, contra.

Heard before MORRISSEY, C. J., LETTON and DAY, JJ., BLACKLEDGE and REDICK, District Judges.

OPINION

REDICK, District Judge.

This is an action by plaintiff, Varnum, against the Union Pacific Railroad Company to recover damages to plaintiff and his automobile in the sum of $ 25,000 claimed to have been sustained by reason of negligence of the defendant resulting in a collision between an automobile driven by plaintiff and a train of defendant at a country crossing. Defendant's engineer in charge of the train is joined as defendant. The trial to a jury resulted in a verdict in favor of the engineer, but against the railroad company in the sum of $ 1,250. The grounds of negligence charged are the failure of the engineer to give any warning of the approach of the train to the crossing by sounding a whistle or ringing a bell, and the existence upon the right of way of willows and weeds which obstructed the view of plaintiff as he approached the crossing, so that he was unable to see the train until he was so close to the rails that he could not stop in time to avoid the collision. The separate answers of the defendants consisted of denials of allegations of negligence in the petition, and pleas of contributory negligence on the part of the plaintiff. The defendant appeals, assigning a number of errors, only one of which we deem it necessary to consider, namely, that the verdict is not supported by sufficient evidence and the district court erred in overruling defendant's motion for a directed verdict.

The verdict of the jury in favor of the engineer is a finding against the plaintiff as to all charges of negligence relating to the management of the train, and, therefore, we are concerned only with the charge that the right of way was permitted to be covered with weeds and trees to such an extent as to obscure the view of plaintiff on the highway of the approaching train; and the existence of trees may be eliminated because the testimony of all the witnesses shows that there were no trees within 40 feet of the railroad track, or any other obstructions within that distance, except weeds. It is shown without dispute that the situation regarding permanent factors at and near the crossing was as follows: The Lincoln Highway, a paved road, and the double track of the defendant run parallel with each other in a northwesterly direction about 150 to 160 feet apart. A county road running north and south crosses the highway and the railroad, the east line of the road making an angle at the railroad track of about 65 degrees. On the east side of the road between the highway and the railroad was a cornfield extending to the right of way fence 50 feet north of the tracks and parallel with them. Ten feet south of the fence is a line of telegraph poles and a few scattering scrub willows. The surface of the road within that 50 feet is about 2 feet lower than the roadbed of the railway, and about a foot lower than the general surface of the right of way between the railroad and the fence. A slight incline begins about 8 or 10 feet north of the crossing where the road approaches it. As plaintiff approached the crossing from the north, his view of the railroad track upon which the train with which he collided was approaching from the east was at the angle above stated of about 65 degrees, with the ever widening prospect which such an angle gives; that is, the crossing was not at right angles with the railroad, and plaintiff approaching from the north had the advantage of the divergence of the line of the railroad from a right angle.

Plaintiff testifies that he was driving a Ford touring car, and that he turned from the Lincoln Highway to the left on the county road, going south on the east side of the road in low gear at about six or seven miles an hour (at which rate he could stop in five or six feet), looking and listening for approaching trains in both directions, and before entering upon the crossing brought his car nearly to a stop,...