93 Neb. 258 | Neb. | 1913
Thomas Armstrong was struck and killed by a car that was being switched by the defendant company. His mother, Grace Armstrong, as administratrix of his estate, brought this action in the district court for Douglas county, alleging that the death of the deceased was caused by the negligence of this defendant. Upon the trial there was a verdict and judgment for the plaintiff, and the defendant has appealed.
The defendant denied the allegations of negligence on its part, and alleged contributory negligence on the part of the deceased, and also contended that the verdict is excessive.
1. The first contention of the defendant is that the deceased, under the circumstances in this case, must be considered to have been a trespasser, or at least a mere licensee, upon the tracks of the defendant, and that there
It is very manifest from these conditions that the employees of the packing company were not trespassers in going to and from their cars over these tracks in this inclosure, nor were they licensees. They were acting in the regular course of their employment, and were entitled to that protection which should be accorded to men who were where it was not only their right, but their duty, to be. This is virtually conceded by the defendant in its answer in the admission that the deceased “received certain injuries on the premises of the Cudahy Packing Company at South Omaha, Nebraska, from which he died.” Several witnesses testified, and the plaintiff contends, that the universal practice had been to push these refrigerator cars along the switch track with an engine that could be heard by the workmen, which enabled them to avoid danger; that these cars on this occasion moved without noise, and there was no lookout stationed to warn the workmen of danger; and that the defendant was negligent in this respect, and also in driving these unusual cars onto these tracks without notice or warning to the employees of the packing company. The jury must have found that the defendant was negligent in these respects; and, while the evidence at some points is somewhat conflicting, we cannot say that this finding is so clearly wrong as to require a reversal.
3. The jury assessed the plaintiff’s damages at $7,000. The defendant contends that this is grossly excessive and is not supported by the evidence. The deceased was a
The judgment of the district court is therefore
Affirmed.