51 Neb. 442 | Neb. | 1897
The defendant in error instituted this action in the district court of Jefferson county to recover damages alleged
The main allegations of the petition filed for defendant in error were, in substance, that cars equipped with double deadwoods were so difficult to couple, and the act of coupling them so dangerous to persons undertaking it, that it was negligence for the company to receive them for transportation on its road; that having received them, it was the duty of the company, when it called on the defendant in error to couple them, to notify him of the peculiarity of the construction of the ears and direct his attention to the double deadwoods; that the failure to give such notice was actionable negligence; also that it was the duty of the company to furnish him with a coupling-knife, in use for making couplings of cars having double deadwoods, with which to make the coupling; that this was not done, which was negligence on the part of the company, which rendered it liable for the consequent injuries to defendant in error. The double dead-woods were referred to and described as follows: “These two freight cars aforesaid had attached to them, where the coupling was made, what is known by railroad men as ‘man-killers’ or deadwoods, described as follows: The
The ansAver of the company admitted that defendant in error was injured at the time, place, and in the manner alleged, but of the extent of the injuries alleged a want of knowledge, and demanded proof, and joined issues as to all the other material facts pleaded in the petition. It was affirmatively stated in the answer, in substance, that cars equipped with double deadwoods were reasonably safe, and had been in use for many years on many lines of railroad engaged in interstate transportation; that the tAvo cars which the defendant in error attempted to couple together were tendered to and received by the plaintiff in error in the regular course of the business of interstate shipments, and that it was compelled to accept and transport them over its line of road; “that the situation and use of the double deadwoods on these cars was plain to be seen, and the defendant alleges that whatever injury the plaintiff sustained at said time and place said injury was caused by his own carelessness and negligence and Avithout any fault of this defendant.” As a further defense it was stated that there had been organized and Avas in existence what was called and known as the “Burlington Voluntary Relief Department,” of which the defendant in error was a member, and on account of such membership was entitled to certain benefits or payments, in the AAray of support and maintenance while injured or sick at any time during his employment by plaintiff in error; that the company had guarantied the funds necessary, if any, over and above the regular stated contributions of members to pay all calls on the funds to
It was further pleaded in this connection: “That in becoming a member of said association, in consideration of the defendant company agreeing to guaranty the necessary funds for the payment of the expenses of the relief department, and of the dues and claims arising on account of such membership, the plaintiff contracted to and with the said association and company to release the said railroad company from all liability on account of any accident where the plaintiff accepted benefits due to him by reason of such accident and on account of his membership in said association, specifying in his application for membership as follows:
“ ‘I also agree that in consideration of the amounts paid and to be paid by said company for the maintenance of the relief department, the acceptance of benefits from the said relief fund for injury or death shall operate as a release and satisfaction of all claims for damages against said company arising from such injury or death, which would be made by me or my legal representatives.’
“That shortly after the injury to the plaintiff, he made application to the said relief department for the benefits accruing to him on account of his disability resulting from said injury, and he was duly paid the full amount of benefits accruing to him on account of his membership in said relief department for such disability, from 'month to month, in accordance with his contract of membership, and he received the said the money as benefits accruing to him on account of his membership in said relief department, which money was paid by the defendant company on account of its guaranty for the furnishing of the necessary funds; that at said time, and prior thereto, the relief department funds fell far short of the amount necessary to satisfy the claims justly due to various sick and injured employes, on account of their membership in said relief department; and the defendant railroad company*449 furnished the money for carrying out the terms and conditions of the relief department benefits, in accordance with the contract with the plaintiff, as well as the other employes who were members in said department; the exact amount paid by the railroad company for such' period the defendant is not at this moment advised.” The aggregate or total of the sums paid to defendant in error was also stated.
In a reply the defendant in error denied all new matter set up in the answer; admitted the existence of the relief department, his membership', in the same, and his reception of benefits after he was injured. Of the amount received he was not advised and could not definitely state, and among the reasons why this receiving the payment should not bar him of this action, it was pleaded that “plaintiff further alleges the fact to ■ be that before he could engage in the services of said company he was required and compelled to join said Burlington Voluntary Relief Department and become a regular member thereof.”
At the first offer of evidence, an objection to the introduction of any was interposed for the company on the ground that the petition was insufficient, — did not state a cause of action. This was overruled, and such action of the trial court is of the errors asigned and presented. When objection is made, during a trial, that the petition is defective, in that it does not state a cause of action, the pleading will be liberally construed and, if possible, sustained. (Marvin v. Weider, 31 Neb., 774.) Read and interpreted within the foregoing rule, the petition stated a cause of action in that it raised a question of whether a coupling-knife should have been furnished to defendant in error to use when called on to couple cars on which there were double buffers; also, whether or not the equipment of cars with double deadwoods made the act of coupling so dangerous as to constitute it negligence per se to have them on the line of road or to receive them and transport them, as to all the employes who were re-
There were assignments of error which make necessary an examination of the evidence in connection with the allegations of the pleadings in the light of the rules of law applicable to the points and questions raised, and which have been discussed by counsel. This we Will now attempt to do. The first question which it seems proper to notice in regular order is, what was the duty of the railroad company in regard to the reception for transportation of the cars of other lines tendered to it for such purpose? In some states this matter .has been regulated by constitutional provision, in others by statute, and in others been held to be a part of the duty of a railroad as a carrier. It was said on this subject in the decision in the case of Louisville & N. R. Co. v. Boland, 11 So. Rep. [Ala.], 667: “It may be said it is a matter of common knowledge that the demands and exigencies of commerce require in the transportation' of freight that the cars of one company shall be hauled over the road of another, and that, in order to meet this demand, the gauge of the tracks of the great trunk lines have been made uniform. This necessity has been recognized and provided for by statute in many of the states, including Alabama. Section 21 of article 14 of the constitution, and section 1165 of the Code of 1886, carrying the same into effect, make it mandatory on railroads, when required, to transport or draw over its line the passengers, freight, or cars of any intersecting or connecting road, on reasonable terms, provided such cars are adapted to the gauge of its track, are sufficiently strong, and otherwise in proper condition for safe transportation.” In the opinion, written by Cooley, J., in the case of Michigan C. R. Co. v. Smithson, 7 N. W. Rep. [Mich.], 791, is the following statement: “The primary fact that must rule this controversy is that
In the case of Thomas v. Missouri P. R. Co., 18 S. W. Rep. [Mo.], 980, it was observed: “Now, as to the second point proposed for discussion: The constitution of this state declares (art. 12, sec. 13): ‘Every railroad company shall have the right, with its road, to intersect, connect with, or cross any other railroad, and shall receive and transport each other’s passengers, tonnage, and cars, loaded or empty, without delay or discrimination.’ And section 2626, Revised Statutes, 1889, is but a legislative declaration of the same mandate. It will be observed
In section 4, article 11, of our constitution it is provided: “Railways heretofore constructed, or that may hereafter be constructed in this state, are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.” This constitutional provision, giving it a fair and reasonable construction, is broad enough to include the transportation of cars of one company over the line of another, and cast the duty on a railroad, when cars of another road are tendered, of receiving and transporting them where the gauge is suitable, and the cars offered are not defective, out of repair, or of such construction in whole or in any particular as to be unreasonably dangerous to those who might be obliged to work on or to handle them. (See Peoria & P. U. R. Co. v. Chicago, R. I. & P. R. Co., 109 Ill., 135.) Moreover, aside from the constitutional requirement, we think on principle it must be said that railroads, as common carriers, must receive and transport cars of other roads, when tendered under proper conditions. (Vermont & M. R. Co. v. Fitchburg R. Co., supra; Mackin v. Boston & A. R. Co., supra; Indianapolis, B. & W. R. Co. v. Flanigan, supra; Toledo, W. & W. R. Co. v. Black, supra.) It was not claimed that these cars were defective, or that they were not in good repair. One branch of the complaint was that the receiving and transporting
The evidence in this case disclosed that in coupling cars having double deadwoods there was more hazard to the arm and hand than in performing the same work with those having single buffers; that the double buffers furnished greater security to life than the single; also that coupling cars by hand by the use of the link and pin, whether equipped with single buffers or double dead-woods, is at best a hazardous undertaking, and one which requires care. It was further shown that freight cars with double buffers, similar in construction to the ones' on these cars, were in general use by some of the long lines of railway and freight lines, and it was not shown that they have been discarded or prohibited by any. The defendant in error was about twenty-seven years old at the time he was injured, and had been “railroading” some six or seven years; had worked on several different railroads, also as a switchman in the “terminal” yard at Kansas City; had heard of cars with double deadwoods; did not remember to have seen or worked on or about any such cars; had heard the double deadwoods called “man-killers;” knew that they were carried over any and all
Q. Describe it.
A. I set it in the hole so when the link came in it shook the pin down through the link.
Q. This draw-bar is between the deadwoods?
A. Yes, sir.
Q. You was on the outside about even with the dead-woods?
*456 A. Yes.
Q. Now, then, you went there, clid you, with the pin in your hands when you went between them?
A. I set the pin.
Q. Did you take the pin in with you?
A. No, sir.
Q. The pin was in the draw-bar?
A. I think so, or else on the deadwood.
Q. How did you manage to set the pin in the hole through the draw-bar?
A. I reached over the top and set it.
Q. You reached over the deadwood?
A. If you come to the end of the car you can see on the face of the draw-bar to set your pin.
Q. You stepped in there by the side of the draw-head and took up the pin and set it in the hole?
A. Yes, sir.
Q. Could you see where you was putting the pin?
A. Yes, sir.
Q. You could see the end of the draw-bar?
A. Yes, sir.
Q. Did you hold your lantern where you could see it?
A. Yes, sir.
Q. And these deadwoods, too?
A. I don’t remember of seeing the deadwoods; I wasn’t looking for them.
Q. You didn’t pay any attention to see whether they were there or not?
A. No, sir.
And further on this subject:
Q. You set the pin in this stationary car before the others began to move back?
A. Yes, sir.
Q. So you went in there by the stationary car and fixed your pin in the hole in the draw-head between these two deadwoods before you signaled to the engineer to back up ?
A. Yes, sir.
*457 Q. After doing that you signaled him to back up ?
A. Yes, sir.
Q. When he backed up what did you do?
A. I stepped up to this car and took hold of the rod for a hand hold.
Q. With your left hand?
A. Yes, sir; the lantern was in my left hand.
Q. With your back to the moving train?
A. Yes, sir; my back or side. I don’t know which you want it. It wouldn’t be exactly my back. I was standing in this shape.
Q. You say you would be standing angling toward the car that was approaching, your back toward that car and face toward the drawhead of the stationary car?
A. Yes, sir.
Q. As it came back you caught the link with your hand?
A. Yes, sir.
Q. What did you do?
i A. I held it until I thought it was close enough to go in the draw-bar and then I took my hand out, but didn’t get it out quick enough.
On page 20 plaintiff is asked:
Q. Did you look to see what kind of a car you coupled? anything about it, what kind of a coupling it was?
A. No, sir; that wasn’t my business.
Q. That'wasn’t your business?
A. No, sir.
Q. You didn’t pay any attention to the kind of car you were going to couple?
A. No, sir.
Q. You paid no attention as to what kind of a draw-bar or deadwood the car had?
A. No more than to see that they were there; to see that the pin and link was there.
Q. You saw that, did you?
A. Yes, sir.
Q. Further than that you didn’t pay any attention to it, you say?
*458 A. No, sir; I didn’t.
Q. You paid no attention to the kind of deadwoods, whether it was a foreign car or whether it was a St. Joe or O., B. & Q. car?
A. I paid no attention to that at all.
As we have hereinbefore concluded, it was the duty of the company to receive and transport these “foreign cars.” They were not shown to be faulty, or out of repair, nor was it shown that the deadwoods with which they were equipped were unsuited to the purpose for which they were intended or made, nor that they were unreasonably unsafe or hazardous. From which we must conclude that it was not negligence in the company to receive them and haul them over its road. The question of whether it is an act of negligence for a railway company to receive and draw cars of another company, which have on them double buffers, while its own cars have or are equipped with a different pattern of deadwoods, has been considered in a number of cases, and almost without exception it has been held not to constitute negligence. (Pittsburg & L. E. R. Co. v. Henly, 48 O. St., 608; Michigan C. R. Co. v. Smithson, 45 Mich., 212; Hathaway v. Michigan C. R. Co., 51 Mich., 253; Indianapolis, B. & W. R. Co. v. Flanigan, 77 Ill., 365; Baldwin v. Chicago, R. I. & P. R. Co., 50 Ia., 680; Kohn v. McNulta, 13 Sup. Ct. Rep., 298.)
It is a well settled rule that it is the duty of an employer to exercise due care for those in his employment, and not subject them to hazards or dangers by his negligence. It is also well established that one entering into the employment of another assumes the risks ordinarily incident to the employment, including such as are open, apparent, or obvious, or should be to a person of the experience and understanding of the employe. The difference in tha danger in coupling cars having double1 buffers and those having single, is one of degree, and the extra hazard requires a greater degree of care. We have been furnished, in the record, with a photograph, which is said to be a fair representation of the deadwoods on the
In the opinion in the case of Michigan C. R. Co. v. Smithson, supra, wherein the action was predicated on an injury to the hand of an employe of the company, which occurred while he was engaged in an attempt to couple a car which belonged to another company, then being-hauled over the road, and which had double deadwoods, it was stated: “But we have.had produced for our inspection on the argument a model of the double deadwoods which caused the injury, and it seems impossible to give to the coupler any better or more effectual notification of their presence, and of the difference from those belonging to the defendants than their very form necessarily gives of itself. The difference is very marked and striking, and it is quite impossible to couple the double dead-woods or to approach them for the purpose with any degree of attention without observing it. This is so whether the coupling is done in the daytime or nighttime; for in the night every switchman has his lantern with him, or should have it on all occasions. If, there
In Hathaway v. Michigan C. R. Co., supra, another case in which the facts were similar to the circumstances in the case at bar, it was said: “In this case the danger consisted in the brakeman being caught between the two deadwoods as they came together. The deadwoods were in plain sight; they were really the most prominent objects on the end of the cars. The plaintiff had full oppor
In Thomas v. Missouri P. R. Co., supra, we find the following: “The occasional or frequent use of such cars on any road, in the ordinary course of business, is one of the ordinary risks an employe assumes. Fie knows, or is bound to know, that cars from other roads are being constantly hauled over the road whose employe he is. The most ordinary observation will teach him this. Fie must know these cars may be differently constructed.”
In the opinion in the case of Kohn v. McNulta, supra, written by Mr. Justice Brewer, it was stated: “It is not pretended that these cars were out of repair, or in a defective condition, but simply that they were constructed differently from the Wabash cars, in that they had double deadwoods or bumpers of unusual length, to protect the draw-bars. But all this was obvious to ‘even a passing glance, and the risk which there was in coupling such cars was apparent. It required no special skill or knowledge to detect it. The intervenor was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect were obvious to anyone. Under those circumstances he assumed the risk of such an accident as this, and no negligence can be imputed to the employer. (Tuttle v. Railway Co., 122 U. S., 189; 7 Sup. Ct. Rep., 116; Ladd v. Railroad Co., 119 Mass., 412.)”
We must conclude that the company was not negligent in receiving and hauling these cars over its road, and that the risks incident to the coupling were assumed by the defendant in error.
We will now turn our attention to the examination of the question herein presented, relative to the relief department. in regard to the claim that the contract by which the party injured becomes entitled to benefits, if he chooses to take them, is invalid and incapable of enforcement. The question here raised was considered by this court in the case of Chicago, B. & Q. R. Co. v. Bell, reported in 44 Neb., 44, and the contract held to be a valid one. We have been furnished with no reasons which seem sufficient to call for a reversal of the views then adopted and' announced; hence, we will again approve them herein. (See, also, on this point, Shaver v. Pennsylvania R. Co., 71 Fed. Rep., 931; Johnson v. Pennsylvania R. Co., 29 Atl. Rep. [Pa.], 854; Owens v. Baltimore & O. R. Co., 35 Fed. Rep., 718; Black v. Baltimore & O. R. Co., 36 Fed. Rep., 655; Donald v. Chicago, B. & Q. R. Co., 61 N. W. Rep. [Ia.], 971; Leas v. Pennsylvania R. Co., 37 N. E. Rep. [Ind.], 423; Ringle v. Pennsylvania R. Co., 30 Atl. Rep. [Pa.], 492; Pittsburgh, C. C. & St. L. R. Co. v. Cox, 45 N. E. Rep. [O.], 641.) As we have hereinbefore stated, it was pleaded in the reply that “plaintiff further alleges the fact to be that before he could engage in the services of said company he was required and compelled to join said Burlington Voluntary Relief Department and become a regular member thereof.” In this it will be noticed there is no direct statement that whatever was done in coercing the defendant in error to join the relief department was by or
There is another question which we will notice. The defendant in error having received benefits or payments under the contract by which he became a member of the relief department, if it be conceded that it was a contract which he could avoid at any time by disaffirming, can he now successfully attack it; or, if he might now be allowed to repudiate it, must he' first tender a return of what he has received under and by virtue of it? Such a contract may be either ratified or disaffirmed at the option of the aggrieved party. (Clark, Contracts, 373.) The defendant in error admitted in his reply that he had received benefits under the contract, and, so far as we, are informed by the evidence introduced oh this branch of the case, there were no facts which would tend to show that his actions in receiving the payments were without full knowledge and information of the effect of such acts on his part, or that they were done by other than his own free will and accord. What may be developed at another trial remains for the future. On the subject of the necessity of the tender of the return of the benefits received it has been said: “A release of a claim for damages for injuries received through negligence, obtained by fraud, is valid until disaffirmed by tendering back the consideration. (Kreuzen v. Forty-second St., M. & St. M. Ave. R. Co., 13 N. Y. Supp., 588.)
The judgment of the district court must be reversed and the case remanded for further proceedings.
Reversed and remanded.