
    Union Pacific Railway Company v. John Peter Mertes.
    Filed February 20, 1894.
    No. 4651.
    1. Contributory Negligence. Although, a party may have negligently exposed himself to an injury, yet if the defendant, after discovering his exposed situation, inflicts the injury upon him through a failure to exercise ordinary care, the plaintiff ' may recover damages. (Reaffirming fourth paragraph of the syllabus in Union P. B. Co. v. Mertes, 35 Neb., 204.) Where there is in such a case no evidence of a failure by the defendant to exercise ordinary care a recovery of damages cannot he sustained.
    2. -: Evidence. The evidence examined as to this charge of negligence, and found insufficient to justify the submission of that question to the jury.
    Rehearing of case reported in 35 Neb., 204.
    
      J. M. Thurston, W. B. Kelly, E. P. Smith, and John Schomp, for plaintiff in error:
    The plaintiff below was guilty of contributory negligence. There was no evidence to show any failure on the part of the company to do its whole duty. There was therefore no question of negligence on the part of the company to submit to the jury, and the motion to direct a verdict for defendant below should have been sustained. (Apsey v. Detroit, L. & N. B. Co., 47 N. W. Rep. [Mich.], 513; Hamilton v. Delaware, L. & W. B. Co., 50 N. J. Law, 263; International & G. N. JR. Co. v. Graves, 59 Tex., 331; Beach, Contributory Negligence, pp. 19,20; Chicago, JR. I. & P. JR. Co. v. Houston, 95 U. S., 697; Cincinnati, H. & I. R. Co.v. Butler, 2 N. E. Rep. [Inch], 138; Payne v.' Western & A. R. Co., 13 Lea [Tenn.], 522;’Schaefert v. Chicago, M. &-8t. P. R. Co., 62 la., 624; Ilenzie v. St. Louis, K. C. & N. R. Co., 71 Mo., 636; Pennsylvania R. Co. v. Beale, 73 Pa. St., 504; Haas v. Grand Rapids & I. R. Co., 47 Mich., 401; Tucker v. Duncan, 9 Fed. Rep., 867; Union P. R. Co. v. Adams, 33 Kan., 427; Reading & C. R. Co. v. Ritchie, 102 Pa. St., 425; Cogswell v. Oregon & C. R. Co., 6 Ore., 417; State v. Baltimore & O. R. Co., 69 Md., 494; Mynning v. Detroit, L. & N. R. Co., 64 Mich., 93; Seefeld v. Chicago, M. & St. P. R. Co., 70 Wis., 216; O' Connor v. Missouri P. R. Co., 94 Mo., 150; Moebus v. Herrmann, 108 N. Y., 349; Louisville, N. A. & •C. R. Co. v. Phillips, 112 Ind., 59; Pennsylvania R. Co'.v. Bell, 122 Pa. St., 58 ; Guggenheim v. Lake Shore & M. S. R. Co., 66 Mich., 151; Norfolk & W. R. Co. v. Burge, 84 Va., 63; Chicago & E. I. R. Co. v. Hedges, 118 Ind., 5; Candelaria v. Atchison, T. & S. F. R. Co., 27 Pac. Rep. [N. M.], 497; McAdoo v. Richmond & D. R. Co., 11 S. E. Rep. ,[N. Car.], 316; Tennis v. Interstate C. R. T. R. Co., 25 Pac. Rep. [Kan.], 876; Norfolk & W. R. Co. v. Carper, 14 S. E. Rep. [Va.], 328; Spicer v. Chesapeake & O. R. Co., 11 L. R. A. [W. Va.], 385; Union P. R. Co. v. Adams, 33 Kan., 427; Baltimore & O. R. Co. v. State, 16 Atl. Rep. [Md.], 212; Wright v. Boston & M. R. Co., 129 Mass., 440; Illinois C. R. Co. v. Godfrey, 71 111., 500; Telfer v. Northern R. Co., 30 N. J. Law, 188; Schofield v. Chicago, M. & St. P. R. Go., 8 Fed. Rep., 488; Wright v. Boston <& A. R. Co., 142 Mass., 296.)
    
      Mahoney, Minaban & Smyth and H. B. Holsman, contra:
    
    Although the plaintiff has carelessly exposed himself to an injury, yet if the defendant, after discovering his exposed condition, inflict the injury upon him through a failure to exercise ordinary care, the plaintiff’ may recover damages. (2 Thompson, Negligence, 1157; Barker v. Savage, 45 N. Y., 191; Brown v. Lynn, 31 Pa. St., 510; Northern C. JR. Co. v. Price, 29 Md., 420; Locke v. First JDiv. 8t. Paul & P. R. Co., 15 Minn., 350; Nelson v. Atlantic & P. R..Co., 68 Mo., 593; O’Keefe v. Chicago, R. I. & P. R. Co., 32 la., 467; Morris v. Chicago, B. & Q. R. Co., 45 la., 29; Lannen v. Albany Gas-Light Co., 44 N. Y., 459; McKean v. Burlington, C. R. & N. R. Co., 55 la., 192; Brown v. Hannibal & St. J. R. Co., 50 Mo., 461; Omaha Horse Railway Co. v. Doolittle, 7 Neb., 481; Burnett v. Burlington & M. R. R. Co., Í6 Neb., 332; Cook v. Pickrel, 20 Neb., 433; Union JP. R. Co. v. Sue, 25 Neb., 772.) ' ’ •
   Ryan, C.

The opinion originally filed in this case was reported in 35 Nebraska on pages 204 et seq. A rehearing was granted, and upon full argument we have reached the conclusions which will now be briefly stated. To this end, it is not necessary to review or criticise the syllabus or opinion already referred to. For the purposes of this re-examination they will be assumed to be correct statements of the law applicable to the facts, and the synopsis of the pleadings, proofs, and. established facts will be assumed to be correctly stated, except in so far as otherwise hereinafter pointed out. The fourth paragraph of the syllabus states correctly a principle applicable to our inquiries. It was in the following language: “Although a party may have negligently exposed himself to an injury, yet if the defendants, after discovering his exposed situation, inflicts the injury upon him through a failure to exercise ordinary care, the plaintiff may recover damages.” At almost the close of the opinion the principle just stated is given the following application : “Even if it be conceded that the plaintiff below‘ was unlawfully on .the track and did not look for an engine before crossing the same, still there is testimony in the record from which the jury would be warranted in finding that after the engineer became aware of the perilous situation of the plaintiff below, he could, by the exercise of ordinary care, have stopped the engine.”

Neither in the briefs nor in the oral argument of counsel has evidence been pointed out which justifies this last statement. It is insisted by counsel for defendant in error that while there were two railroad lines admitting of trains passing each other at the point where Mertes was injured, yet that it was fairly inferable from the evidence of Mertes himself that he was upon that particular line over which the engine which injured him was advancing. The evidence of three other witnesses, who were upon the engine, was directly contradictory of this location of Mertes, as it is claimed his evidence justified the jury’s above inference in respect thereto. Mertes seems to have been rather awkward in the use of the English language, it is true, and, therefore, in some parts of his evidence left uncertain just where he was just previous to the collision with him. He said that he was walking “between the tracks” which were “two or three yards apart.” After this he said he walked “between the railroad.” The most that should be claimed by plaintiff in error is that such expressions as “ between the railroad” and “between the tracks” were ambiguous. This ambiguity is removed, however, by the statement of Mr. Mertes that these tracks were two or three yards apart. If this was left in any doubt it should have been entirely removed by the further testimony of Mertes that he was walking between the track where the east-bound train and the west-bound train ran. It must, therefore, be accepted as an unquestioned fact that from the time when it was the duty of the employes in charge of the engine of plaintiff in error to note and act with reference to the whereabouts of Mertes, he was moving forward, having at his left the track upon which, according to his evidence, a Missouri Pacific freight train was moving eastward past him with all the noise incident to the moving of such a train, and with a continuous sound of its bell and whistle. On his right was the track along which, and following him, was advancing the engine to which reference has already been made. The collision is thus graphically described by Mertes in his own peculiar language: “I went on the middle of the two tracks to- Sheeley’s crossing. I went to go over, you know, and the engine whistled behind me, and Hooked back and it caught me and throw me off.” Again he said : “It throw me off the track, you know. I was pretty near off the track when it struck me.” Later on in giving his testimony his examination was as follows :

Q,. Was this engine which struck you making any noise, and if so, what, when it came up ?

A. No, sir; it made no noise — no whistle or no bell ring. I looked back and it whistled a little.

Q. How did it whistle?

A. Toot, toot; that is all.

Q,. Just as it struck you?

A. Yes, sir.

Naturally this witness could by no possibility give, evidence as to what, previous to the accident, was transpiring on the engine, for of that fact the jury could derive knowledge only from the engineer, the fireman, and the pilot, three individuals, whose evidence is concurrent upon these questions. They testified that upon the engineer noticing a man walking alongside the track some distance ahead of where the engine then was, he immediately shut off steam, causing the engine’s speed gradually to decrease until Mr. Mertes started to cross the track, when the engine was immediately reversed and the air brake instantly applied, which was all that could be done to suddenly stop the engine, which measures succeeded in that respect so completely that within the distance of the length of the engine and tender they came to a complete standstill. As to the whistle being sounded, the evidence of these witnesses differed from that of Mertes, for they say that it was sounded by the engineer at Twenty-fourth street (the collision was at Twenty-sixth street, then known as Sheeley’s crossing), while the fireman rang the bell. It would seem that the testimony of Mr. Mertes as to the noise caused by the Missouri Pacific train was given with a view to showing that the sounding of the whistle and ringing of the bell on the Union Pacific engine could not be heard or distinguished by Mertes on that account, and that thereby he was excused from the imputation of contributory negligence^ which would naturally be imputable to an attempt to cross the track in front of an engine giving such warnings. Possibly this evidence accounted for the failure to hear these warnings so that thereby Mr. Mertes was not liable to the same inference of contributory negligence that might otherwise have been imputed to him. The Union Pacific company’s employes having sounded the whistle, rung the bell, and shut off steam, so as to decrease speed, as soon as they discovered that Mr. Mertes, apparently intoxicated, was walking along the side of the track upon which they were running their engine, and afterwards, when he actually stepped upon this track, having, as we have seen, used every available means to stop the engine as quickly as that result could be accomplished, nothing more could be required at their hands. Proof of all these facts being without contradiction, there was no question of negligence upon the part of the railway company to be submitted to the jury, and hence a verdict in support of which that indispensable prerequisite is wanting cannot stand. Let us not be misunderstood. Negligence is a question of fact to be determined by the jury upon the weight of the evidence, as is any other question of fact. When, however, there is no evidence to sustain the essential finding of negligence as against a party sought to be charged therewith, the court cannot sustain the verdict. There can be no preponderance of that evidence which is without existence. The judgment of the district court is

Reversed.  