Lawson v. Union Pacific Railroad

192 N.W. 334, 109 Neb. 785, 1923 Neb. LEXIS 42

• Court: Nebraska Supreme Court
• Decided: February 27, 1923
• Docket: No. 22235
• Status: Published

Opinions

Troup, District Judge.

Plaintiff brings his action against the defendant,. Union Pacific Railroad Company, to recover for the loss of 45 head of cattle killed by one of defendant’s fast-moving passenger trains at or near a certain public highway crossing over defendant’s tracks in or near the village of Buda, Buffalo county, Nebraska. The undisputed evidence shows the value of the cattle destroyed lo be $4,757; but, presumably to avoid federal jurisdiction and maintain his action in the state courts, the plaintiff reduced the amount of recovery asked to $3,000. The jury returned a verdict for plaintiff for $2,000 and interest, a total of $2,472,13. Defendant appeals.

From the petition it appears that at or about 6 o’clock on the evening of December 11, 1917, plaintiff received a shipment of cattle over, defendant’s road at Buda, Nebraska, and, deciding to drive the cattle to his feed yards located about six miles northwest of Buda that night, plaintiff afoot and three men on horseback assisting him drove the herd from the stock pens along the highway immediately • south of and parallel to defendant’s tracks, a distance of about 2,000 feet, then north onto the crossing of defendant’s mainline tracks, the route taken being the natural and most practical one to point of destination, arriving at the crossing a few minutes before 7 o’clock; that defendant had negligently failed to maintain cattle-guards on either side of said crossing; that defendant’s freight train which had brought plaintiff’s cattle to Buda was left standing on the south switch track with the engine attached headed west,. equipped with a powerful electric headlight, within a few feet (from 300 to 500) of said highway crossing, which defendant’s servants negligently left lighted in full glare casting intense rays of light over and upon said crossing; that defendant’s north track at such crossing is about 18 inches higher than the ground in the immediate proximity of said north track, causing the rays from the headlight to cast shadows over the lower ground making it look black; that said cattle, after going upon said crossing, became greatly frightened at said light and the shadows cast beyond its rays, so that they refused to move farther north and cross said mainline track, but “milling” about became unmanageable and crowded off said crossing onto the defendant’s tracks west thereof; that at said time a passenger train of defendant company, known as No. 7, and running several hours late, approached from the east at a very high rate of speed, and passing through said town of Buda without-lessening its speed negligently ran into said cattle then on defendant’s track, killing 45 head thereof; that said cattle Avere killed Avholly through the negligence of defendant in maintaining the powerful and undimmed headlight on the freight engine, the failure to maintain cattle-guards at the crossing in question, and the negligence of its servants in charge of its passenger train in the failure to exercise ordinary care to stop said train before coming into collision with said cattle.

Defendant’s answer admits that at the time stated in plaintiff’s petition plaintiff and his employees drove a herd of cattle belonging to plaintiff along the public highway south' and parallel to defendant’s track from the stock pens in Buda to the public highway crossing on defendant’s track, referred to in plaintiff’s petition, and that said cattle Avere being driven by plaintiff and his employees upon said public crossing at a time when de- ■ fendant’s westbound passenger train No. 7 was approaching from the east; it admits that no cattle-guards had been constructed on either side of said cross-way, but alleges that the law did not require the same; it admits that certain of plaintiff’s cattle were killed by defendant’s train No. 7, but denies each and every other allegation in plaintiff’s petition contained. Further answering, defendant alleges that whatever loss or injury plaintiff may have sustained by reason of the killing of said cattle was caused wholly by the negligence of plaintiff and his servants, and without fault or negligence on the part of defendant or its employees. The reply of plaintiff denies all new matter in defendant’s answer.

It will be observed that three grounds of negligence against defendant are presented by plaintiff’s petition: (1) Negligence in maintaining the headlight on the freight engine standing on the side-track; (2) negligence in failing to maintain cattle-guards at the crossing; and (8) negligence in the operation of the passenger train No. 7 which killed the cattle.

Ground No. 2 was stipulated and instructed out of the case, and ground No. 3 was withdrawn from the jury by one of the court’s instructions, so that ground No. 1 was the only one submitted to the jury, and agreed by both parties to be the only one for consideration here.

At the close of the entire evidence in the case the defendant requested a directed verdict in its favor. The same being refused, the case was submitted to the jury, the jury returning a verdict for plaintiff in the sum above stated. The refusal to direct a verdict and the claim that any verdict for plaintiff cannot be upheld,, under the evidence, form the principal grounds of error.

An examination of the evidence shows that it subsi antially supports the allegations of the petition in-respect to the ground of negligence to be considered,, and further shows that, after placing said engine, with its headlight, in the position stated, the defendant’s-servants in charge thereof abandoned the same for an indefinite time, with no one in attendance thereat until after the accident to the cattle had happened. Under-the evidence adduced there can be no doubt but the glaring headlight from defendant’s freight engine and-the effect it had upon the uneven surface at the crossing Avas the proximate cause of the cattle stampeding Avhich led to their destruction. The blinding light continuing to shine, Avith neither the engineer nor fireman at his post to remove the cause by dimming the light Avhile the cattle Avere still upon the crossing, created a negligent condition, for the injurious consequences of Avhich Ave think the- defendant may be held responsible. It Avas not necessary that this headlight, casting its intense rays over and upon a public crossing, should have 'been kept burning as it Avas. The train and engine to Avhich said headlight Avas attached Avas at rest and Avas to be at rest until it received orders to go forward. AlloAving the full light to shine, as it did, Avas not so culpable, in our opinion, as the act of those in charge deserting their post leaving no one to remove the negligent condition by dimming or extinguishing the headlight in case an emergency arose, as one did arise in this instance. If defendant’s servants had been at their place of duty and exercised ordinary care to observe Avhat effect the light of their engine Avas having upon the actions of plaintiff’s cattle, in all probability the mischief could have been averted by dimming- the headlight Avhile the cattle were still upon the crossing and within the control of the drivers. It was the continuation of the negligent condition after it could and should have been removed that worked havoc among the animals, causing them to break away from the crossing and into a place where they Avere destroyed.

The case is not unlike one in which unusual noises occur in or about the operation of trains in the vicinity of public crossings calculated to frighten animals. The case of Williams v. Chicago, B. & Q. R. Co., 78 Neb. 695, is of that character, and in which it is said: “Where the conditions are such that noises thus made would endanger a person (plaintiff’s team taking fright) at a public crossing, which result could be avoided by temporarily staying or suspending the noise without materially interfering with the due operation of1 the train, ordinary care and prudence require that it be thus stayed or suspended until the danger is past.” In the course of the opinion the court further observes; “The defendant’s liability does not depend alone on what its employees saw, but on what, under the circumstances, they might have seen and should have seen. The fireman at least might have seen the plaintiff’s peril, and, in view of all the circumstances, it was certainly the duty of someone- engaged in operating the train to see.”

So we say, under the circumstances of the instant case, it was the duty of either the engineer or fireman, or both, to have been at his post of duty, and, had either one been there, he would or should have seen the predicament plaintiff’s cattle were in, caused by the light from the engine, and that by dimming or even extinguishing same, if necessary, could have averted the accident. Why both of these employees absented themselves from their post of duty under the circumstances does not appear. Neither one was put upon the stand to explain his absence, and from this it is probably fair to infer that neither one had a justifiable excuse for doing so.

The case of Missouri, K. & T. R. Co. v. Weatherford, 26 Tex. Civ. App. 20, is one in which the railroad company was held liable for the negligence of its engineer for the. unnecessary blowing of the whistle near a crossing resulting in plaintiff’s injury, and the court said: “As the jury were authorized to find from the evidence, the employees of the'appellant in charge of the engine were negligent in' sounding the whistle and keeping it sounding, so that the- appellee’s team became frightened and ran upon the track. They were required to keep a lookout for the crossing, and if they discovered that appellee’s team had taken fright, or by the exercise of ordinary care could have discovered it, or knew that the noise being made would likely frighten a team of ordinary gentleness, and- frightened the team with the unnecesary blowing of the whistle, the appellant would be liable for negligence.” Substituting the “headlight” in the case at 'bar for the “whistle” in the case cited, we have a perfect application. See instruction to same effect, approved in Missouri, K. & T. R. Co., v. Belew, 22 Tex. Civ. App. 264; Gulf, C. & S. F. R. Co. v. Box, 81 Tex. 670; Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. St. 219.

IVho can say that under the circumstances in the present case the defendant was not negligent in any degree? Even if the plaintiff was also negligent, it became a question of comparative negligence between the two, and that was a question for the jury to decide.

It is true that while the cattle were about to go upon the crossing the driver in the lead espied what he thought might be a train approaching from the east just appearing around a curve in the road about six miles distant, and called out to his fellow drivers, including the plaintiff, who said, “Go ahead.” But the cattle were then upon the crossing, and any attempt to have ttrned them back at that time in the face of defendant’s blinding light would have been a futile thing, as subsequent events proved, and had the condition at the crossing caused by the light and shadow which frightened the cattle not existed, or, existing, had been removed by dimming the light, the plaintiff would have had ample time to have driven his cattle across before the arrival of the train which killed them. It is said by defendant that the plaintiff knew of the existence of the light upon the crossing, and also that no one was on the engine, so far as he discovered, at the time of passing the same on his way to the crossing; that he was also familial’ with the construction of the crossing, and with the habits and propensities of cattle to shy or become frightened by a sudden change from light to darkness on the surface of the ground, and that a fair inference from the. evidence is that defendant’s servants had no actual knowledge of the effect of the light upon the crossing and no knowledge of the effect the condition created - would have upon animals. This much wé think is fairly shown or inferred from the evidence. We think, however, there is no evidence showing that plaintiff knew, or had reason to know, that the rays of defendant’s headlight cast dark shadows upon the crossing or in immediate. proximity thereto, .or that plaintiff knew, or had reason to know, that defendants servants had left the vicinity of their engine so as not to be able, in the exercise of ordinary care, with reasonable promptness, to protect travelers and their property on a public crossing against dangerous emergencies liable to arise on account of the headlight.

But, from what is shown and inferred from the ■ evidence, defendant argues that plaintiff was negligent, and that, if both plaintiff and defendant were negligent, then the negligence of each is to be measured by their comparative knowledge of existing conditions, and that, if plaintiff’s knowledge of the danger to be encountered equals' or exceeds . that of defendant, then defendant is not liable, if plaintiff embraces the danger. We think this may be conceded to the extent, if at all, plaintiff was, in fact or in law, negligent. But. we are of the opinion that defendant is presuming too much on plaintiff’s supposed negligence. Conceding that plaintiff knew, as he did, of the existence of the light upon the cxmssing before he drove his cattle there, he did not know, in advance, that it created a dangerous condition, and he had a right to assume that, if a dangerous condition created by said light was suddenly disclosed which was endangering plaintiff’s cattle, defendant’s servants would be on hand with reasonable promptness to abate the same. Williams v. Chicago, B. & Q. B. Co., supra. Under these conditions defendant’s proposition itself becomes one of comparative negligence — a matter for the jury to determine under proper instructions.

TVe think the trial court instructed the jury properly on this question, and that defendant’s objections thereto are not well taken, nor is the claim that, because the verdict rendered is less than half of plaintiff’s total loss, evidence that the jury found that the defendant’s negligence was less than gross and plaintiff’s negligence was more than slight as compared with each other. The plaintiff limited his recovery to $3,000 and the jury were so instructed. We are of the opinion that the judgment of the lower court is warranted under the law and the evidence, and that the same should be.

Affirmed.