Wilson v. Union Pacific Railroad Company

• Decision Date: 17 November 1921
• Docket Number: 21353
• Parties: GEORGE W. WILSON, ADMINISTRATOR, APPELLANT, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

185 N.W. 406

107 Neb. 111

GEORGE W. WILSON, ADMINISTRATOR, APPELLANT, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLEES

No. 21353

Supreme Court of Nebraska

November 17, 1921

APPEAL from the district court for Dawson county: HANSON M. GRIMES JUDGE. Reversed.

REVERSED.

Halligan Beatty & Halligan, for appellant.

N. H Loomis, Edson Rich, C. A. Magaw and T. W. Bockes, contra.

Heard before MORRISSEY, C.J., LETTON, ROSE, DEAN, ALDRICH, DAY and FLANSBURG, JJ.

OPINION

DAY, J.

In a former unpublished opinion by the commission, we affirmed the judgment of the lower court. A rehearing was granted, and the case submitted to the court.

The plaintiff, as administrator of the estate of his deceased son, Joseph E. Wilson, brought this action against the defendant to recover damages for negligently causing the death of deceased. At the close of the plaintiff's testimony, on motion of the defendant, the trial court directed a verdict for defendant, and entered judgment accordingly. The plaintiff appeals, assigning as error this action of the court.

In stating his cause of action, the plaintiff relied upon a number of specifications of negligence, one of which only need be considered at this time, namely, the failure of the defendant to blow the whistle or give other warning of the approach of the passenger train. The answer of the defendant admitted that the deceased came to his death by a collision with its train; denied that it was negligent; and alleged that deceased's death was due to his own negligence. The only question presented upon the reargument on behalf of the plaintiff was whether the case should have been submitted to the jury upon the doctrine of what is frequently termed "the last clear chance." A determination of this question involves an examination of the evidence.

The record shows that on January 4, 1918, at about 2 o'clock in the afternoon, on a partially cloudy day, Joseph E Wilson, a young man slightly over 18 years of age, was struck and instantly killed by a west-bound passenger train on defendant's road. The train, consisting of an engine and 13 coaches, was one of the fast transcontinental trains operated by the defendant, and at the time of the collision was running at approximately 40 miles an hour. The collision occurred at a point 475 feet west of the depot in the village of Willow Island. At that point the defendant maintains a double track which, for practical purposes, may be said to extend in an east and west direction. The north track was used by west-bound trains, and the south track by east-bound trains. The view to the east from the point of the collision is unobstructed for over a mile. There was a platform extending along the north side of the tracks, and also one on the south side of the tracks, used for convenience in handling freight. The plaintiff was engaged in operating a store, and his son Joseph, the deceased, was assisting him. On the day in question the plaintiff sent his son Joseph with an automobile to get some freight, consigned to plaintiff, which had been unloaded from the car by the defendant and piled upon the depot ground about 135 feet west of the platform, and on the south side of the double track. The freight was piled in an open field, and there was no road leading to it. The surface of the ground approaching this point was very uneven, full of holes, and not safe to drive over. Joseph took the automobile and stopped it on the north side of the double track, directly north of the place where the freight was piled. He had carried a few boxes across the tracks and placed them in the automobile, and, while thus engaged, a freight train approached from the west upon the south track, blowing the whistle, ringing the bell, and otherwise making considerable noise. Joseph stopped his work and went over to the south side of his automobile, leaning his arm on the car, his face looking toward the west, watching the freight train. He continued to remain in this position until just the instant he was struck, when he turned his head slightly to the east, the train striking him on the left side of the head, resulting in instant death. The front end of the passenger train passed the front end of the freight train a little east of the depot, and the rear of the two trains cleared about 260 feet west of the point of collision. Neither of the trains were scheduled to stop at Willow Island, and did not do so on this occasion. There is no doubt under this record that the deceased was rightfully on the defendant's right of way, and in no sense could he be regarded as a trespasser. By placing the freight upon the ground at the point where it was unloaded, the defendant impliedly at least invited the consignee or his agents to...