Wright v. Chicago, Rock Island & Pacific Railway Co.

146 N.W. 1024, 96 Neb. 87, 1914 Neb. LEXIS 13

• Court: Nebraska Supreme Court
• Decided: April 18, 1914
• Docket: No. 17,189
• Status: Published

Opinions

Pee Cueiam.

After the reargument in this case, we have carefully reexamined the record and are satisfied with the following language in the former opinion (94 Neb. 317) 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 employees 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 ruléis 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 were 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 employees 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 employees. 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 cases the reasonableness of the particular rule becomes a mixed question of law and fact, the law to be determined by the court and the facts by the jury. To this extent our former opinion is modified, and, as there is no prejudicial error in the verdict for tbe reasons stated above, and in our former opinion, tbe motion for rebearing is overruled and our former judgment adhered to.

Rehearing denied.