32 Neb. 306 | Neb. | 1891
This is an action for damages by reason of the death of James Persinger, the defendant in error’s intestate, caused by the alleged negligence of the railroad company. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed the damages at the sum of $5,000. From the judgment entered upon the verdict the defendant brings the case to this court by proceedings in error.
The principal question we are called to pass upon is, whether there was any testimony in the case tending to-sustain the verdict and judgment. It appears from the record that on the night of December 9, 1888, JamesPersinger left Lincoln on his first trip as a brakeman on the plaintiff in error’s stock train, running between that place and Omaha. The train was pulled by two engines, and arrived at the station house near South Omaha on the
H. G. Taylor and L. S. Collier, the engineers, were the only wetnesses who testified on the trial as to the manner of the accident. They were called to the witness stand by the defendant in error. Mr. Taylor testified on this branch of the case as follows:
Q,. Did you see the lantern go down?
A. I did.
Q. Were you the first one to see it?
A. I cannot say.
Q,. What did you see when you saw the lantern go-down ?
A. I stood on my engine — I stood and thought there was something vnong; I saw the rear brakeman had come over the top of the cars and come where the deceased was standing on the cars of the main body of the train; Brakeman Moore came along and he came down by the side of the cars, standing on the main body of the train, and got down on the main body of the bridge and went— that would be about half a car’s length away from the train —towards the engine to get a pin to couple up the train with. When the rear brakeman was about half a car’s length from the end I saw the lamp as it whirled, making a half circle, going over there on the side; I went and saw the rear brakeman and asked him where he left him, and he said he left him on top of the cars, and I said I am afraid he is down over the bridge; well, says Moore, if he has gone over the bridge he will brake no more.
*311 Q. Then what did you do ?
A. Then Moore, the brakeman, went back to the point to ascertain where the deceased was at that time, and found out where he was, and my fireman followed Moore when he went back. There were no words from the brakeman, nor was Persinger to be seen. Then they came running back over the trestle work and went below the bridge, and there they found him lying.
Q. Did you get down; did you go with them?
A. No, I waited until after they were down; I was the last down.
Q,. State from that profile, Exhibit “A,” where you found the body of Persinger.
A. .About this place here.
C. Between the seventh and eighth spans from the west end of the bridge, counting the small spans at the end of the bridge?
A. Yes.
Q. Now state where the body was lying with reference to the stringers on the south side of the bridge?
A. It was lying with its feet towards the south and his head rather inclined in towards a plumb line from the top of the stringers.
Q. That is, he was lying partly under the outer line of the track?
A. Yes.
Q,. The stringers being the outer line of the track ?
A. Yes.
Q. Where was the lantern?
A. About an arm’s length from where he was lying, south of him.
Q. Was it broken ?
A. It was setting on end; whether broken I could not say.
Q. You didn’t notice whether the glass was broken out?
A. No, sir.
*312 Q,. Was there a stone there so you could identify the place?
A. Yes.
Q,. What kind of a stone was it?
A. A common flagstone.
Q,. A common rough stone?
A. Yes.
Q. Do you know how high the bridge was where Per-singer went down ?
A. I would say from twenty-five to thirty feet, or thereabouts.
Q,. When you first saw him he was going over on top of the car ?
A. Yes.
Q. How far up was he on the car?
A. I could not say, only from the reflection against the side of the car as it was going down.
Q,. The lamp dropped straight down ?
A. No, it was rather outward.
Q,. Did it fall straight down?
A. No, it was going in a circle.
Q,. How far did it circle out from the side of the car?
A. I don’t know exactly; it was about the same as a man would take his arm and give a swing; about like that.
Q. When you first saw it was the reflection near the top or bottom of the car?
A. It was near the top of the car.
Q. You don’t know exactly how near the top of the car? A. No, I cannot tell.
Q,. Who gave you the signal to stop ?
A. Persinger.
Q. He was on top of the train?
A. Yes.
Q,. You stopped in response to his signal?
A. Yes.
Q,. What else did he do?
*313 A. He stood until the rear brakeman came up.
Q,. Then what did he do?
A. He was standing still on the train.
Q,. How did you know that?
A. I saw him.
Q,. Could you see Persinger from there ?
A. Undoubtedly so.
Q. Plainly?
A. It was not very dark, and he had his lantern there.
Q,. Don’t you know it was a dark night?
A. I don’t think it was very dark.
Q. There was no moon?
A. I don’t know there was no moon, but a sort of reflection in the sky.
The testimony of Collier, the other engineer, is to the same effect.
In the petition and in the brief of counsel for defendant in error, the defendant company’s liability for the death of Persinger is placed upon the ground that the defendant was guilty of negligence in not flooring the bridge and erecting railings on the sides, and in having failed to warn the deceased before he started on the trip of the condition of the bridge, he being wholly unacquainted with it. It appears from the evidence that Persinger was carrying his lantern at the time the accident happened, and could plainly see the bridge. The company had a right to expect that he would use reasonable care and would know what was easily to be seen by his own observation, that the bridge had no floor nor railings, and the danger attending the climbing down a ladder on the side of a car at that place. The' duties of his employment did not require him to climb down onto the bridge, nor was he requested so to do by any one, and if he made the attempt it was at his own peril.
The bridge was constructed in the usual manner for the passage of trains, and was not intended to be, nor was it
The case of Koontz v. C., R. I. & P. R. Co., supra, is quite similar in its facts to the one before us. Mr. Justice Seibers in the opinion says: “The bridge in question was sufficient for trains to pass over it with safety. For this purpose due care did not require the bridge should be planked. If, however, it was necessary for employes to pass over the bridge in the performance of their duties, ordinary care would seem to require that barriers should be erected or other precautions against accident used; the rule being, as we understand, wdien employes are required to use appliances in the performance of their duties that such appliances should be kept in suitable repair, and be reasonably sufficient for the purpose intended. Several authorities are cited in support of this proposition, and we
We have carefully examined and considered the authorities cited in the brief of counsel for the defendant in error. Of the cases brought to our attention, Franklin v. Winona & St. P. R. R. Co., 37 Minn., 409, is claimed by his counsel to be the most analogous to the one at bar. In that
We see nothing in the Minnesota case that conflicts with the views we have expressed in this opinion.
We have thus far, in the consideration of this case, assumed that Persinger climbed down the ladder on the side of the car, and on account of the bridge not having a floor and railings, he fell and lost his life. There is no conflict in the testimony bearing upon the question as to how the accident occurred; nor is there a single fact or circumstance disclosed by the evidence which tends to show that the deceased attempted to climb down off of the car onto the bridge. No such inference can be properly drawn from the evidence. While on the other hand the testimonjr of
The defendant asked the court to direct a verdict against the plaintiff, which request was denied. In this we think there was error. Wheréver, in a case tried to a jury, there is no conflict in the testimony, and no inferences about which reasonable men might differ, to be drawn from the facts and circumstances proved, the court may direct the verdict which shall be returned. (A. & N. R. R. Co. v. Loree, 4 Neb., 446; Reynolds v. B. & M. R. R. Co., 11 Id., 186; Lent v. B. & M. R. R. Co., Id., 201; B. & M. R. R. Co. v. Wendt, 12 Id., 80; Manzy v. Haney, 13 Id., 36; Hiatt v. Brooks, 17 Id., 38; Osborne & Co. v. Kline, 18 Id., 344.)
For the reasons stated the judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.