84 Neb. 305 | Neb. | 1909
The plaintiff brought this action against the Union Stock Yards Company to recover for injuries received while engaged in switching the cars of the company in its yards at South Omaha. The case was once before appealed to this court, the opinion being reported in 77 Neb. 196. In his original petition the plaintiff charged negligence on the part of the defendant, in that the cars which he was engaged in switching were not equipped Avith automatic couplers, and, also, in alloAving its roadbed or track to become in a condition dangerous to its employees. Prior to the first trial the court, on motion of the defendant, struck from the petition that part charging negligence on account of the cars not being equipped with automatic couplers, and the case was tried upon the remaining allegations of the petition. The plaintiff recovered, but the judgment was reversed, this court holding that the plaintiff had assumed the risks of the injuries of which he complained. On the case being remanded to the district court, the plaintiff filed an amended petition, again charging the defendant Avith negligence because of the want of automatic couplers on its cars, and, further, in maintaining at the edge of its roadbed a hole six or eight inches deep, into which he stepped, losing his
One of the errors assigned is the action of the district court in striking from the petition tbe charge of negligence in not equipping its cars with automatic couplers. The defendant insists that this assignment of error cannot be considered, as it was not assigned as one of the grounds of plaintiffs motion for a new trial. There are several cases in our reports indicating, if not directly holding, that an order of the trial court in sustaining or overruling a demurrer, a motion to strike or to make more specific, or other order made relating to the pleadings must, in order to be considered by this court, be included in the motion made to the district court for a new trial of the case. An examination of our statute relating to new trials and the constructions heretofore placed thereon in,, numerous cases establishes beyond any doubt the rule that orders of the district court which do not pertain to the trial of the case, such as rulings upon demurrer, motions addressed to the pleadings, and motions to dismiss, need not be called to the attention of the trial court by motion for a new trial to make them available on appeal taken to this court. O’Donohue v. Hendrix, 33 Neb. 255; Farris v. State, 46 Neb. 857; Claflin v. American Nat. Bank, 46 Neb. 884; Scarborough v. Myrick, 47 Neb. 794; Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385; Hans v. State, 50 Neb. 150; Horton v. State, 60 Neb. 703; Slobodisky v. Curtis, 58 Neb. 211, where our previous decisions are collated by Mr. Justice Norval. The latest expression of this court upon the question is found in
The question being fairly presented by the record, we cannot escape the duty of determining whether it was error to the plaintiff’s prejudice in striking from the plaintiff’s petition the statements relating to the want of automatic couplers upon the cars. We think it a question not open to controversy, both from his petition taken as a whole, and from his own testimony given upon the trial, that the want of the automatic couplers was not the proximate cause of the plaintiff’s injuries. During the taking of evidence, some testimony relating to the character of the couplers was offered, and, on a protest from the defendant against the admission of such evidence on account of the matter in the petition relating thereto being stricken out, the court said: “This evidence is received, not for the purpose of showing negligence, but merely for the purpose of describing the manner in which the accident happened.” It so happen», therefore, that the record contains the plaintiff’s description of the couplers and their operation. His own version of the occurrence is, in short, as follows: Several of the defendant’s cars stood on a track on one side of which was an ice platform, and on the other side the platform of the main building of one of the packing houses. The switching crew, of which the plaintiff was one, were ordered to couple several cars standing on another track to the cars standing between the two platforms. The cars which were to be coupled were backed in onto the track between the two platforms, the plaintiff riding on top of the moving car nearest those to which the moving cars were to.be coupled. The approach was made on what is called a “reverse curve,” and the coupling was not. made on account of the drawbars not
This testimony is conclusive that it was not a want of automatic couplers that caused the injuries. Cars equipped with automatic couplers must have their draw-bars in proper position when the coupling is attempted on a curve in the track. The plaintiff had gotten down from the top of the car upon which he was riding, had opened the knuckles of the. coupler, and adjusted the draw-bars so that the knuckles would interlock. This was while the cars were from eight to ten feet apart. He then stepped outside the rail, signaled the engineer, and, in attempting, not to make the coupling, but to take hold of the grab iron on the car, and to step onto the brake-beam, lost his balance on account of the hole or defect in the roadbed, fell against the platform, and was caught by the -car which he had signaled the engineer to move.
A careful reading of the evidence and comparing it with the opinion written on first appeal discloses that no new or material evidence favorable to the plaintiff’s case was introduced on this trial. This was also the view of the trial court, who said, in directing a verdict: “And,
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.