Brady v. Chicago, Saint Paul, Minneapolis & Omaha Railway Co.

Norval, J.

At the January term, 1897, a judgment in favor of the administratrix was reversed and the ’cause remanded to the district court for further proceedings. See Chicago, St. P., M. & O. R. Co. v. Brady, 51 Nebr., 758. On the second trial a verdict in favor of the defendant was returned in response to a peremptory direction of the trial court. This proceeding was instituted by the plaintiff to obtain the reversal of the judgment entered thereon.

James Brady, on December 5, 1891, was run over and killed by one of defendant’s trains in the city of Norfolk. This action was instituted by the administratrix of his estate to recover damages for his death. The only question presented is whether, under-the evidence, the court erred in directing a verdict for the defendant. We do not think it did. The record discloses that the deceased and his son, on the afternoon of the date named, were engaged in hauling hay, and, while crossing the track of the defendant, the accident occurred; that after the wagon loaded with hay had crossed the track, the de *234 ceased either jumped or fell off the wagon and was run over by one of defendant’s passenger trains; that deceased for a distance of several hundred feet had an unobstructed view of the railroad track and approaching train, but did not stop, but crossed without stopping to look or to listen for the train. This constituted contributory negligence such as to prevent a recovery. See Omaha & R. V. R. Co. v. Talbot, 48 Nebr., 627; Guthrie v. Missouri P. R. Co., 51 Nebr., 746; Chicago, B. & Q. R. Co. v. Pollard, 53 Nebr., 730. The evidence adduced established beyond controversy that the railroad company was not guilty of negligence, and that the engineer, as soon as he discovered the danger, put on the air brakes, and reversed his engine; in fact, did everything within his power to avoid the accident. Under the circumstances it was not error to direct a verdict for the defendant.

Affirmed.