Thomas v. Burlington Northern RR, Inc.

279 N.W.2d 369, 203 Neb. 507, 1979 Neb. LEXIS 897
CourtNebraska Supreme Court
DecidedMay 22, 1979
Docket42208
StatusPublished
Cited by5 cases

This text of 279 N.W.2d 369 (Thomas v. Burlington Northern RR, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Burlington Northern RR, Inc., 279 N.W.2d 369, 203 Neb. 507, 1979 Neb. LEXIS 897 (Neb. 1979).

Opinions

Bosláugh, J.

Thte plaintiff, Harold H. Thomas, was injured in a tru^k-train collision on July 15, 1974, while erhployed by Gary Aesoph, doing business as H. J. Aesoph & Sons Construction. The plaintiff was operating a dump truck loaded with wet concrete when the truck collided with a freight train of the defendant, Burlington'Northern Railroad, Inc., at a temporary gijade crossing near Sidney, Nebraska.

[508]*508At the time the accident occurred the interstate highway west of Sidney, Nebraska, was being constructed. Western Contracting Corporation was the principal contractor. Gary Aesoph was a subcontractor hired by Western to do the trucking on the job.

The interstate highway bridge over the railroad was under construction but had not been completed. The plaintiff was hauling a truckload of concrete from the mixing plant which was several miles west of the railroad crossing to a point east of the crossing where the paving was being laid. To get from the mixing plant to the point where the paving was in process, the plaintiff drove along the interstate grade to a point west of the bridge which was under construction. The plaintiff then made a left turn and drove down the side of the fill near the bridge site. The plaintiff then followed a “haul road” which crossed the railroad track at grade at a 90-degree angle approximately 400 feet north of the interstate bridge site. The haul road then turned to the south and rejoined the interstate grade a short distance east of the bridge.

On July 15, 1974, the plaintiff came to work at about 6 a.m., and had hauled 10 or 12 loads of concrete before the accident happened. At about 3 p.m., he left the mixing plant with a load of wet concrete. When he reached the point west of the bridge where he turned left off of the interstate grade he put the truck in low gear. The truck went down the grade at between 5 and 7 miles per hour and he continued at that speed until he reached the crossing and started across the tracks.

As the plaintiff’s truck approached the grade crossing from the west, a freight train consisting of 7 locomotives, 110 empty coal hopper cars and a caboose approached the crossing from the south at a speed of approximately 32 miles per hour. The train [509]*509was about 1% miles long and weighed about 5,650 tons.

The plaintiff testified that he did not stop at the crossing or look for approaching trains and did not see the train before the collision. The front of the locomotive struck the right side of the truck behind the cab.

The engineer who was operating the locomotive, Jacob J. Sewald, testified that he was looking straight ahead and did not see the truck until just before the impact. He placed the train’s air brakes in “emergency” at about the time the impact occurred and the train stopped between 14 and y2 mile north of the crossing.

This action was commenced by the plaintiff and Aesoph to recover damages for the injuries sustained by the plaintiff in the accident and the damages to the Aesoph truck which was destroyed in the accident. The defendant counterclaimed for the damages sustained by two of its locomotives in the accident.

At the close of the evidence the trial court found as a matter of law that the plaintiff was guilty of contributory negligence which was more than slight and dismissed the petition. The case was submitted on the cross-petition of the defendant and the jury returned a verdict for the defendant in the amount of $12,000.

The plaintiff and Aesoph have appealed. The assignments of error relate to the dismissal of the plaintiff’s petition at the close of the evidence; the admission into evidence of photographs of the scene of the accident; and the instructions to the jury.

The photographs in question were taken by Darrell McCall, a claims representative of the defendant, on the morning after the accident. McCall testified in detail as to how the photographs were taken and an adequate foundation for the admission of. the photographs was shown. Generally a photograph is ad[510]*510missible if it is relevant and is shown to be a. true and correct representation of the place or subject it purports to represent at a time pertinent to the inquiry. Markey v. Hunter, 170 Neb. 472, 103 N. W. 2d 221.

The photographs were taken from the center of the haul road at distances, of 25, 50, 75, 100, and 125 feet west of the crossing and show the view from the crossing to the interstate bridge south of the crossing. The photographs were relevant because they established without question that there was no obstruction to the plaintiff’s view of the tr;ain as he approached the crossing, and if the plaintiff had made the slightest effort to maintain a lookout he would have seen the train in time to avoid the collision.

The plaintiff claimed the photographs were: inaccurate because they did not contain a view of the area to the left of the crossing. Since the train approached from the south and the plaintiff approached the crossing from the west, a view of.the area to the left of the crossing would not have been relevant. ' ' '

The plaintiff further objected to the photographs on the ground they had been “edited.” The photographs were a series of still shots taken by turning the camera from left to right so that the pictures in each series would form a panoramic view, of the area shown in the photographs. At the time the photographs were offered in evidence, the pictures in each series had been taped together with the detail along the edge of each picture matched , to the detail on the adjoining picture. This “editing” formed no basis for excluding the photographs from evidence.

It is a well-established rule in Nebraska that a traveler on a highway, when approaching a railroad crossing, has a duty to look and listen for the approach of trains. He must look, where by loókihg [511]*511he could see, and listen, where by listening he could hear, and if he fails without a reasonable excuse to exercise such precautions, then he is guilty of contributory negligence more than slight, as a matter of law, and no recovery can be had for damages resulting from a collision with a passing train. Milk House Cheese Corp. v. Chicago, B. & Q. R. R. Co., 161 Neb. 451, 73 N. W. 2d 679. See, also, Loudy v. Union P. R. R. Co., 146 Neb. 676, 21 N. W. 2d 431; McIntosh v. Union P. R. R. Co., 146 Neb. 844, 22 N. W. 2d 179; Mundt v. Chicago, R. I. & P. R. Co., 136 Neb. 478, 286 N. W. 691; Moreland v. Chicago & N. W. R. Co., 117 Neb. 456, 220 N. W. 692; Askey v. Chicago, B. & Q. R. Co., 101 Neb. 266, 162 N. W. 647; Chicago, B. & Q. R. Co. v. Schwanenfeldt, 75 Nell. 80, 105 N. W. 1101. The plaintiff argues that the rule was not applicable in this case because the plaintiff was entitled to expect that a flagman would be guarding the crossing if a train was in the vicinity; the other drivers did not stop, look, or listen at the crossing; and if he had looked he would not have been able to see the train.

The defendant had no independent duty to provide a flagman at the crossing. There is no obligation to install signal devices or maintain flagmen under all conditions even at arterial crossings. Sailors v. Lowden, 140 Neb. 206, 299 N. W. 510.

The evidence shows the contract between Western Contracting Corporation and the state placed the responsibility for obtaining flagmen upon Western. On request the railroad would furnish a flagman at the expense of Western.

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Thomas v. Burlington Northern RR, Inc.
279 N.W.2d 369 (Nebraska Supreme Court, 1979)

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Bluebook (online)
279 N.W.2d 369, 203 Neb. 507, 1979 Neb. LEXIS 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-burlington-northern-rr-inc-neb-1979.