54 Neb. 127 | Neb. | 1898
The Chicago, Burlington & Quincy Railroad Company has filed a petition here to review a judgment of the district court of Phelps county pronounced against it in favor of George Kellogg.
1. The first argument is that the petition does not state a cause of action. Kellogg in his petition, in substance, alleges: That on the 7th of August, 1892, he was a station agent of the railway company at Bertrand, Nebraska; that it was his duty as such agent to set the brakes on cars left by passing trains on the side trucks at that station to prevent the wind blowing the cars off the side track on the main line; that about 10 o’clock in the evening of said date he went upon a car standing on a side track at his station for the purpose of setting the brake thereon, and that as he turned the brake a wire which connected the brake-chain with' the brake-rod broke, precipitating him from the car on the bumpers thereof and injuring him; that he had no knowledge of the defective condition of the brake; that the company had negligently permitted this brake to become and remain out of repair, in this, that the chain which connects the brake with the brake-rod should be fastened to the latter by a balf-inch iron bolt; that this had been lost out, and some one had connected the rod and chain Avith a wire which was wholly unfit for that purpose. It is now insisted that this petition does not state a cause of action because it does not allege that the company kneAV that
2. A second argument is that the judgment cannot stand because Kellogg’s injury resulted from the negligence of a fellow-servant. It is true that in the absence of statute the general rule is that a master is not liable to one servant for an injury which he has sustained through the negligence of a fellowyservant. (See the rule stated
3. Counsel for Kellogg, in his argument to the jury
4. The next argument relates to the instructions. At the request of the plaintiff belOAV the court instructed the jury as follows: “Employment in the service of a common master is not alone sufficient to constitute tAVO men felloAV-servants within the rule exempting the master from liability-to one for injuries caused by the negligence of the other. To make the rule applicable .there must be some consociation in the same department of duty or line of employment.” The railroad company excepted to this instruction, but the court did not err in giving it, and we only, quote it here for the purpose of showing upon w7hat theory the court submitted the case on trial to the jury.
Another instruction given by the court at the request of the plaintiff below, and over the objection of the railAvay company, was the following: “If you find that the brake on the car in question Avas repaired in an unsafe manner, and permitted to remain in an unsafe condition through the negligence of some employé of the defendant, on whom the duty of repair and keeping in repair such brake was imposed by the defendant, then under such circumstances the defendant would not be exempt from liability on the ground fhjrt, finch employ ó Ayas :i fellpw-servant of plaintiff.”
It will be observed that the court submitted to the jury as a question of fact whether the plaintiff below, the station agent, was a fellow-servant of his co-employé, the car repairer or inspector. Under the evidence we think the court would have been entirely justified in instructing the jury that the station agent and car repairer were not fellow-servants; but since both parties to this'litigation requested that that question might be submitted to the jury, neither of them are in any position to question the ruling of the court, in making that submission. It is to be observed, also, that the court, told the jury that if the plaintiff’s injury was the result of the neglect of the railroad company’s car repairer or inspector to repair the brake, and flint, it was the duty of such inspector to make the repair, then the railway company would be liable for the plaintiff’s injury, even if the jury found that the car repairer or inspector and the station agent were fellow-servants.
Tt must be confessed that these insfructions are some-
Judgment affirmed.