45 Neb. 570 | Neb. | 1895
“ 1. Was the plaintiff injured by reason of the coal car being left on the main track so close to the switch as not to leave room for the cars to pass by on the switch without collision? Ans. Yes.”
“ 3. Would the accident have happened if the coal car had been left at a sufficient and safe distance from the*576 switch so as to leave room for the cars to pass in on the side track without striking the coal car? Ans. No.”
There is no question made, nor is there room for doubt, that Mr. Morledge and the defendant in error were fellow-servants in the strictest legal sense of that term. They were employed in the management of the same train, and every consideration which operates to exonerate the employer from liability for an injury sustained by an employe, owing entirely to the negligence of a co-servant, applies with full force. (See Youll v. Sioux City & P. R. Co., 66 Ia., 346; Chicago & A. R. Co. v. Rush, 84 Ill., 570; Atchison, T. & S. F. R. Co. v. Plunkett, 25 Kan., 188; Besel v. New York C. & H. R. R. Co., 70 N. Y., 171; Houston & T. C. R. Co. v. Gilmore, 62 Tex., 391.) The fact that there was negligence, and that it was the sole cause of the injury, was fixed beyond peradventure by the above special findings of the jury. It is provided by section 294 of the Code of Civil Procedure: “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.” Under the admitted facts, and those which, with the same binding effect, had been established by the above special findings of the jury, there was error in rendering judgment in accordance with the general verdict.
“ 5. Do you find that the plaintiff is entitled to recover On account of the medical treatment that he received after the accident? Ans. Yes.
“By court: Do you find that the plaintiff is entitled to recover for both the accident and the medical treatment? Ans. Yes.”
It has already been shown that the railroad company had been guilty of no negligence contributing to the accident whereby the defendant in error was injured, wherefore, at the time when its alleged surgeons were called in a professional capacity to attend upon the defendant in error, the situation was as though the summoning of these professional gentlemen had been by an individual or corporation not engaged in operating a railroad. It was alleged in the petition that the surgeons, who in an alleged unskillful manner amputated the foot of the defendant in error, were at that time “duly authorized agents, physicians, and surgeons of and in the employ and pay of defendants, then and thereafter.” . This, if true, entitled the railroad company to demand the rendition of such surgical aid for its employes as it chose to require in their behalf. Since it was alleged in the petition that the yardmaster was duly authorized to call in Dr. Chapman, it may be assumed that the services of this surgeon were rendered upon the special request of the railroad company. As to the services of the other two, the entire dependence seems to be upon the fact alleged generally, that they, as well as Dr. Chapman, were its authorized agents, physicians, and surgeons. At the time they assumed the control of Mr. Howard’s case, the most that can be said is, that they were required so to do by their employer, the plaintiff in error. It was alleged in the petition that these physicians and surgeons professed to possess, and in fact did possess, a high
Reversed.