70 Neb. 66 | Neb. | 1903
Giffen, the plaintiff below, was employed in an elevato.' in the town of Grafton, Nebraska. There are two elevators on the railroad right of way, Giffen being employed in the Avest elevator. The facts upon xvhich he claims to recover, omitting the formal allegations, are as follOAVS:
“That on or about the 27th day of July, 1901, and for a long time prior thereto, plaintiff had been working in said west elevator at a salary of $35 a month, and on said day there wei'c standing on said sidetrack at said elevator three cars, one of xvhich plaintiff Avas loading with grain, the other tavo standing xvest of said loaded car and being empty; that xvhile said plaintiff was loading .said car one of defendant’s engines, pulling several freight cars, proceeded west of said depot on defendant’s main line and backed on to said sxvitch going to the east elevator for some purpose unknown to plaintiff; that in so going the said three cars as above mentioned Avere pushed toAvard said east elevator; that after the purpose had been accomplished for Avhich defendant’s engine and cars had been
Damage was claimed in the sum of $3,000. Judgment went in favor of the plaintiff for $1,000, and the defendant has taken error to this court. From the foregoing extract from the petition, it will be seen that the action is based wholly upon the fact that the plaintiff believed that the train crew in charge of defendant’s train had finished the work of switching and were about to proceed upon their way west. Acting upon this belief, he entered between two of the cars left upon the side-track and was injured in the manner stated in the petition by another car of the train being switched upon the side-track and “kicked” against the cars behind him.
The right of the plaintiff to recover and to avoid the charge of contributory negligence, does not depend solely upon his own belief that it was safe to enter between the cars for the purpose of “pinching” one of them into the position desired, but the question is, was this belief derived from acts and declarations of the servants of the plaintiff in error upon which he might rely and which, in the judgment of the jury, would justify a reasonably prudent man to act as he did? As stated in Muldowney v. Illinois R. R. Co., 36 Ia. 462:
“The reasonable belief of a party that he will not sustain an injury in doing acts which, but for such belief, would be negligent, does not exonerate him from the charge of negligence.”
The evidence discloses a state of facts which we think made it a question for the jury to say whether or not Giffen was negligent in going between the cars. Prior to doing so the switching crew had “spotted” the car which Giffen had been filling from the elevator. This, as we understand it, 'means that the car was placed as nearly in position to be filled from the elevator as could conveniently
Q. Tell us what he (the brakeman) said.
A. He asked me if the car was at the place T wanted it, and if the car was right. I told him “No” and said that “it is about as near right as you can get it.” He says, “Shall I back up?” I said, “No, I will pinch it Avith a crowbar.” He says, “All right,” and went to the other end of the train and I noticed the train push on out west.
Q. Where did you notice it from?
A. When I got up on the car I see the train going out ;just heading on to the main track.
We think that the act of spotting the car and the. inquiry by the brakeman, if it was properly placed, indicated that the train creAV A\ras through with its work of switching, so far at least as not to further interfere with the car which Giffen was filling, and that Giffen, by telling the brakeman that he would “pinch” it into the exact position Avanted Avith a croAvbar, gave notice to the crew that he understood that they Avould not further interfere with the car, and that he himself Avould enter between the cars and pinch it into position, thus giving them warning that he Avas about to occupy the dangerous position that he did under the belief that he Avas not to be further interfered with in his Avork and calling upon them to give him notice if in the further work of SAvitching it was necessary to move the car or to back other cars against it in such manner as to endanger him. It is true) as argued by the company, that the owner of the elevator and his employees had a right upon the railroad ground at the elevator as licensees only, and that being mere licensees they undertook to do their Avork of loading cars at the elevator subject to the right of the company to handle its trains, and use the track for switching purposes; that the company had the first and primary right as against them to do all the work necessary in setting in or backing up cars on this side-track, whether the cars were moved by the direct movement of the engine
“Our work does not further require us to interfere with this car, and you may safely proceed to ‘pinch’ it into position and resume your work of filling it.”
The employees of the company knew as Avell as Giffen that the work of pinching the car into position required Giffen to enter between the cars where he could neither see nor be seen, and under such circumstances it was undoubtedly a question for the jury to say whether the company was negligent in not ascertaining that he had entered into his dangerous position, and giving him notice of its intention to further interfere with the car at which he was at work, so that he might protect himself against danger. We conclude therefore that there was no error in submitting the question of negligence to the jury and that the findings of the jury are conclusive.
We recommend the affirmance of the judgment.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
