Wright v. Chi., R. I. & P. R. Co.

• Decision Date: 26 September 1913
• Docket Number: No. 17,189.,17,189.
• Citation: 94 Neb. 317,143 N.W. 220
• Parties: WRIGHT ET AL. v. CHICAGO, R. I. & P. R. CO.
• Court: Nebraska Supreme Court

94 Neb. 317

143 N.W. 220

WRIGHT ET AL.

v.CHICAGO, R. I. & P. R. CO.

No. 17,189.

Supreme Court of Nebraska.

Sept. 26, 1913.

Syllabus by the Court.

A railroad company has a right and it is its duty to make reasonable rules for the protection of the safety of its employés, and such rules its employés are bound to regard and obey; but whether or not any particular rule, under the circumstances shown, is sufficient and adequate for the safety of the company's employés is a question of fact for the jury.

Under the rules of the defendant company, the switch engine in its Lincoln yards had the right to occupy the main track, protecting itself against overdue trains. The extra, which was being run by plaintiff's decedent, was required to proceed through the yard under full control, and protect itself within yard limits. The switch engine having the right of way over the extra, it was the duty of the decedent to be on the lookout for the switch engine, and to take such precaution as the situation demanded to prevent a collision; but this did not relieve the crew of the switch engine from the exercise of ordinary care in avoiding a collision with the extra, which they knew had entered the yard.

The uncontradicted evidence shows that the defendant company, at and prior to the collision which caused the death of plaintiff's decedent, had not promulgated any written or printed rules regulating the rate of speed at which the switch engine might be run in its yards. Held, that it was for the jury to say whether or not, under the circumstances shown, the failure of the company to adopt and promulgate such a rule was negligence on its part.

There being no evidence in the record tending to show negligence on the part of plaintiff's decedent, the question of contributory negligence does not arise.

The evidence shows that the decedent was a man of good health, 32 years of age; that he was earning from $125 to $150 per month; that his expectancy, according to the Carlisle table, would be 32 years. Held, that we cannot say that $15,000 is an excessive judgment under these circumstances.

Plaintiff's decedent was running a lone engine as an extra from one point to another in this state, not in connection with any cars. Held, that he was not engaged in interstate commerce.

Instructions complained of and set out in the opinion examined and held free from prejudicial error.

The evidence examined and set out in the opinion held sufficient to sustain the verdict and judgment.

Additional Syllabus by Editorial Staff.

Where, in an action for the death of an engineer in charge of an extra, due to a collision with a switch engine, the evidence was conflicting on whether the engineer in charge of the switch engine applied all the apparatus on the engine to stop it, and showed that the engine had not stopped when the collision occurred, the court properly submitted to the jury the question whether those in charge of the switch engine jumped therefrom without trying to stop it.

In an action for the death of an engineer in charge of an extra, due to a collision with a switch engine, the burden was on the defendant railroad company to establish by a preponderance of the evidence the defenses of contributory negligence and assumption of risk.

Appeal from District Court, Lancaster County; Frost, Judge.

Action by Lizzie L. Wright and others against the Chicago, Rock Island & Pacific Railroad Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Hamer, J., dissenting.

M. A. Low, of Topeka, Kan., E. P. Holmes and G. L. De Lacy, both of Lincoln, and P. E. Walker, of Topeka, Kan., for appellant.

G. W. Berge, of Lincoln, for appellees.

FAWCETT, J.

From a judgment for $15,000 in favor of the plaintiffs on account of the alleged negligence of the defendant in causing the death of Otto O. Wright, husband of plaintiff Lizzie L. Wright, defendant appeals.

The abstract contains 86 printed pages, the supplemental abstract 201 pages, the brief and reply brief of appellant 139 pages, and the brief of appellee 90 pages. To follow counsel through this voluminous record and through their equally voluminous briefs would necessitate an opinion of such length that it would be useless to the profession, for the reason that no lawyer would ever read it. We shall therefore deal directly with the material issues in the case.

Otto O. Wright was an engineer in the service of defendant. At the time set out in the pleadings he was ordered to run an engine, No. 1486, as “an extra” from Fairbury to Albright, both points in Nebraska. In making this run he was required to pass through the city of Lincoln. After leaving the station at Lincoln, and while running north through the company's yards at a point a short distance from the Holdrege street viaduct, this extra collided with the company's switch engine No. 1220, which was used by the defendant in its Lincoln yards for switching purposes, causing the death of Mr. Wright. These two engines will hereinafter be referred to by their respective numbers. The point where the collision occurred was in a cut and on a curve. The controlling, and in fact the only real, question involved in this case is, Who was to blame for this collision?

It is shown that the defendant had rules for the guidance of its employés, including engineers. On its printed time-tables, such as were then used by engineers, rule 16 provided: “All except first class trains will approach (enter, and pass through the following named yards under full control), expecting to find main track occupied or obstructed: Albright, Fairbury, Lincoln, Belleville, Jansen, Phillipsburg.” Subdivision b of rule 9 provided: “The speed of trains in the city of Lincoln between M street (two blocks west of passenger station) and Vine street (east of coal dock) must not exceed six miles per hour.” Rule 97a in the book of rules promulgated by defendant provided: “Yard limits will be indicated by yard limit boards. Within these limits yard engines may occupy main tracks, protecting themselves against overdue trains. Extra trains must protect themselves within yard limits.” The term “under full control” in rule 16 all of the witnesses testified means “to be able to stop within the vision of the engineer.” It is conceded that 1486 was required, while passing through the company's yards in the city of Lincoln, to proceed under such control. It is uncontradicted that the defendant had no written or printed rule relating to the rate of speed at which its switch engines might run within its yards. There is some testimony to the effect that there was some sort of an unwritten rule or understanding that switch engines should also be run under full control; but the evidence is entirely satisfactory, and not contradicted by any testimony offered by defendant, that defendant's switching crew did not consider that it was bound by any such rule, except as to that portion of the Lincoln yard between M and Vine streets, which portion was not only covered by subdivision b of rule 9, but also by a city ordinance. Defendant in its brief urges 13 assignments of error, which we will consider in their order.

[8] The first assignment is that the verdict is not sustained by sufficient evidence. In considering this assignment, the place where the collision actually occurred is important. There is a viaduct on Holdrege street at the place where that street is intersected by defendant's track. Holdrege street runs east and west. The collision occurred north of the viaduct. 1486 was running north, and 1220 south. In going north, after leaving the viaduct, the track curves to the east in a cut. The collision occurred in that cut. The point where the collision occurred is testified to by the engineer, fireman, switch foreman, and two of the switchmen who were riding on 1220, McLane, the fireman on 1486, and by four witnesses who resided in the immediate vicinity, and who visited the scene immediately after the collision. All of these witnesses locate the point of the collision as right opposite or a few feet south of a barn standing on the first lot east of the track, which lot faces south on Holdrege street. This lot is 135 feet in depth. The four residents of the vicinity locate the collision a little south of the barn. McKinstry, a switchman on 1220, says that 1486, after the collision, was about 35 or 40 feet south of the building shown in the photograph, which is the barn referred to. Some of the switching crew testify that the collision occurred about 150 feet north of the viaduct. This testimony, however, was simply the opinion of the witnesses so testifying. This testimony cannot be considered in the face of the large number of witnesses whose uncontradicted testimony locates the exact place where the collision occurred in front or a few feet south of a fixed object or point by the side of the track. Considering, therefore, the length of the lot upon which the barn stood and the point in relation thereto, where these residents show the collision occurred, there is no escape from the conclusion that the collision actually occurred at a point about 100 feet north of the viaduct.

It is admitted that all of the members of the switching crew knew that the extra 1486 was in the yard. McKinstry, the switchman above referred to, was the first to discover that the two engines were running towards each other on the main track. He testifies that he immediately gave the alarm. The men on 1220 testify that when McKinstry gave the alarm the engineer threw on the emergency brake. When 1220 had run about 75 or 100 feet, McKinstry and some of the others jumped from the engine. All of the crew, including the engineer, jumped; but whether the others jumped at the same time McKinstry and Carr did, is not shown. Possibly the engineer remained on a little longer. According to McKinstry and Carr, 1220 proceeded about 25 feet after they jumped before the collision occurred, so that, according to their...