Wright v. Chi., R. I. & P. R. Co., No. 17,189.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation96 Neb. 87,146 N.W. 1024
PartiesWRIGHT ET AL. v. CHICAGO, R. I. & P. R. CO.
Decision Date18 April 1914
Docket NumberNo. 17,189.

96 Neb. 87
146 N.W. 1024

WRIGHT ET AL.
v.
CHICAGO, R. I. & P. R. CO.

No. 17,189.

Supreme Court of Nebraska.

April 18, 1914.


On motion for rehearing. Former opinion modified, and motion overruled, and former judgment adhered to.

For former opinion, see 143 N. W. 220.

Hamer, J., dissenting.

[146 N.W. 1024]

PER CURIAM.

After the reargument in this case, we have carefully re-examined the record and are satisfied with the following language in the former opinion (143 N. W. 220) for the reasons there given: “A rule that a switch engine may run through the yards on the main line not under control but at a high rate of speed, when its crew all know that there is an ‘extra’ on the main line passing through the yards, would be a barbarous rule, and, if the rules of a railway company permit such a practice, it should be held liable for injuries to employés on the extra who are injured while such extra is being operated in compliance with the rules of the company, viz., under full control. If the reasonableness of a rule is for the court and not for the jury, the court should in such a case instruct the jury that such a rule is unreasonable. Submitting the question to the jury in such a case could not therefore prejudice defendant.” The decedent was running his engine under full control, within the meaning of the rule of the company. There was no express rule as to the speed allowed to the switch engine. Of course, the law requires that such engine should not be run at an unreasonable rate of speed under the circumstances. The engineer of the switch engine must have had a clear view of the approaching engine for at least 420 feet, and it was run at least 370 feet of this distance before the collision occurred. It could have been stopped within a distance of 60 feet unless running at a greater speed than 20 miles an hour, and, knowing, as the crew of the switch engine did, that No. 1468 was in the yards, to run at a greater speed than 20 miles an hour in such a locality and under such circumstances was in itself negligence. In such a case the court might properly have told the jury that any rule of the company which permitted such action was unreasonable, and the giving of an erroneous instruction as to the reasonableness of the rules would be without prejudice to the defendant. There is, however, no doubt that the instruction given by the court was erroneous. The jury was told: “In this connection you are further instructed to determine from all the evidence in this case whether the defendant's rules with respect to the operation and control of its engines and trains, including its switch engines in the Lincoln yards, were reasonably sufficient for the protection of its employés, at the time plaintiff's intestate sustained his injuries”--thus submitting to the jury to determine the reasonableness of the rules of the company as a whole so far as they were or were not sufficient to protect the employés. Different juries might not take the same view of a system of rules for the running of trains and engines in a complicated railroad yard, and it is beyond their power to determine what those rules should be. When the question of negligence depends upon the reasonable sufficiency of a certain rule, the court should determine the question, if the facts are not in dispute. If the facts upon which the reasonableness of the rule depends are in substantial conflict, the court should tell the jury plainly under what conditions the rule would be reasonable and allow the jury to determine the facts.

In such case the reasonableness of the particular rule becomes a mixed question of law and fact, the law to be determined by the court and the fact by the jury. To this extent our former opinion is modified, and, as there is no prejudicial error in the verdict for the reasons stated above, and, in our former opinion, the motion for rehearing is overruled, and our former judgment adhered to.

HAMER, J.

I feel that I am in duty bound to dissent from the majority opinion. We cannot too zealously protect the rights of litigants. As I look upon it, the errors of the trial court which contributed to the bringing about of the verdict and the judgment are most manifest. The majority opinion concedes the following instruction to be wrong but undertakes to say that it worked no injury to the defendant. It is claimed that it was not prejudicial. The jury was told by it: “In this connection you are further instructed to determine from all the evidence in this case whether the defendant's rules with respect to the operation and control of its engines and trains, including its switch engines in the Lincoln yards, were reasonably sufficient for the protection of its employés

[146 N.W. 1025]

at the time plaintiff's intestate sustained his injuries.” It is argued that the foregoing was erroneous, and it is said that the reasonableness of the rules of the company as a whole should be determined by the court and not by the jury, and it is claimed that for this reason the instruction could have done no harm. To this I say that, if the particular instruction conduced to the bringing about of a wrong verdict and a wrong judgment, then that this court should undo what the lower court...

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1 practice notes
  • Chicago, Rock Island Pacific Railway Company v. Lizzie Wright, No. 167
    • United States
    • United States Supreme Court
    • 10 Enero 1916
    ...The plaintiff had a verdict and judgment, and the latter was affirmed by the supreme court of the state. 94 Neb. 317, 143 N. W. 220, 96 Neb. 87, 146 N. W. 1024. The defendant prosecutes this writ of error. It is entirely clear that taking the road engine from Phillipsburg, Kansas, to Counci......
1 cases
  • Chicago, Rock Island Pacific Railway Company v. Lizzie Wright, No. 167
    • United States
    • United States Supreme Court
    • 10 Enero 1916
    ...The plaintiff had a verdict and judgment, and the latter was affirmed by the supreme court of the state. 94 Neb. 317, 143 N. W. 220, 96 Neb. 87, 146 N. W. 1024. The defendant prosecutes this writ of error. It is entirely clear that taking the road engine from Phillipsburg, Kansas, to Counci......

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