272 N.W. 209 | Neb. | 1937
This is an action brought by the administrator of the estate of one George Metzler to recover damages alleged to have resulted from the wrongful death of his intestate while employed by the defendant. The case was submitted to a jury, resulting in a verdict for plaintiff. From the order
For convenience the appellee will be designated as plaintiff; the appellant as defendant; and George Metzler, the plaintiff’s intestate, as the deceased.
The facts may be summarized as follows: On March 17, 1935, and for sixteen years prior thereto, the deceased had been employed by- the defendant. During the seven years immediately preceding his death his employment was designated as car inspector in the switching yards of the defendant at Lincoln, Nebraska. His duties as such were to inspect cars and trains, do light repair work in and about cars and trains arriving and departing from the railroad yards, and sometimes couple air hose and safety chains. About 10 o’clock on the night of March 17, 1935, freight train No. 68 was brought into the defendant’s yards at Lincoln. This train consisted of a number of loaded freight cars, most of which originated at Denver, Colorado, and destined to points east of Lincoln, Nebraska. In the section of defendant’s switch yards where this accident occurred which resulted in the death of the deceased, there are tracks numbered from 1 to 11; track numbered 1 being on the south and track 11 being on the north of the section, all being connected by a lead track. Immediately adjacent to track 1 is the running track. It was on this track that train No. 68 was brought to a stop. It was there that the deceased and a fellow employee by the name of Stern, in the performance of their duties as car inspectors, passed along the train in search of defective cars, the deceased on the north side and Stern on the south. The deceased discovered that in this train there was a refrigerator car which had a broken brake shoe, a part of which was missing. This was at the east end on the north side of the car. A brake shoe consists of a heavy piece of cast iron weighing about 20 pounds, one surface being concave so that when inserted in the proper position the pressure in the braking
The principal ground urged by defendant for reversal is that the evidence is wholly insufficient to support a verdict. Should this question be resolved in favor of the defendant it will sufficiently dispose of the entire case.
The federal employers’ liability act, which is admitted
It will be observed that recovery under this statute must be predicated upon the negligence of the carrier which in whole or in part was the proximate cause of the plaintiff’s damage; and the burden of proving such negligence by a preponderance of the evidence is cast upon the plaintiff.
The theory relied upon by the plaintiff, as gleaned from the pleadings and the evidence, seems to be that the witness Stern was the lead car inspector and consequently the deceased’s superior; that Stern, in a conversation had with the deceased at the material box north of track 11, knew the deceased was going to make repairs upon the refrigerator car by inserting the new brake shoe; that Stern told him to go ahead, make said repairs, and he, Stern, would inform the switching crew not to run cars on this track while such repairs were being made; that knowing the deceased was in a position of danger and failing to protect the deceased under such circumstances constituted negligence.
The evidence does not establish such a situation. The only evidence that Stern was the superior must be assumed from his testimony, in which he stated he was lead inspector. If the record shows anything as to the relation these two fellow workmen sustained toward each other it indicates the contrary. It appears that the deceased first discovered the defective brake shoe and directed Stern to procure another from the material box near by and hand it to him and he would put it in place, which Stern did. If either party occupied a position of superiority over the other it was the deceased over Stern since his statement carried with it the element of command. The evidence is undisputed that four minutes before the deceased was found dead Stern had left him at the material box north
The witness Stern was called on behalf of plaintiff and testified that when he and the deceased separated at the material box the deceased did not state he was going to replace the broken brake shoe, neither did the. witness state to the deceased to go ahead and make the repair, nor that
Upon this point the plaintiff soug'ht to impeach his own witness, Stern, by the wife of the deceased, and himself, both testifying, over objection of defendant, that the morning following the accident Stern, while at the home of the deceased, told the wife of the deceased that he instructed the deceased to put the brake shoe on; that he would have plenty of time to do so, and that he, Stern, would tell the switching crew not to switch any cars in on that track while such repairs were being made.
The reception of this testimony was strenuously resisted on the part of the defendant. It is quite evident that at this juncture the plaintiff realized he was confronted with a like poverty of material with which to construct a case as were the industrious but disappointed Israelites when they undertook to manufacture bricks without straw. The law will not permit one to bolster up a weak case by supplying the elements of negligence through impeachment of a witness not a party to the case. Such impeaching testimony should never be received without first laying the foundation therefor. The reception of such testimony is based upon surprise or entrapment. In order to lay the foundation the surprise or entrapment should appear. If the party calling the witness had been previously advised that the witness would not testify to such state of facts, then such party cannot claim the .benefit of surprise. Such foundational facts should appear before the testimony is admitted. We find no such foundational testimony in the record. While the trial court in its instructions limited the effect and purpose of the receipt of this testimony, yet we entertain grave doubts as to whether the jury comprehended the significance of this instruction. Without treating such as substantive evidence there was nothing upon which to base their verdict; hence, the fact that they found for the plaintiff forces the conclusion they did regard that testimony as substantive evidence, notwithstanding such instruction.
Impeaching testimony on the ground of surprise, when
Further, it may be stated that negligence will never be presumed from the fact of injury or death. Negligence, to support a verdict, must be established either by direct proof or by physical facts of sufficient potency from which a reasonable inference of the same may arise. Neither can negligence be based upon surmise, speculation or conjecture.
“A .verdict cannot be permitted to stand, which rests upon conjecture, surmise, or speculation, but plaintiff must produce substantial affirmative proof that the negligence of the carrier caused the injury, and ‘where proved facts give equal support to each of two inconsistent inferences; in such event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of those inferences as against the other, before he is entitled to recover’”— citing cases. Wheelock v. Freiwald, 66 Fed. (2d) 694.
In Seaboard Air Line Co. v. Horton, 233 U. S. 492, the court said: “Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not.”
The conclusion we are compelled to draw from the entire record is that the plaintiff utterly failed to assume the burden of proving negligence of the defendant in connection with the death of deceased. The trial court should have sustained the request for a directed verdict, and failure to do so constitutes error. The judgment is reversed and the action dismissed.
Reversed anü dismissed.