49 Neb. 649 | Neb. | 1896
This action was instituted in the district court of Custer county by the plaintiff against the defendant company, to recover the amount of damages alleged to have resulted from injuries to plaintiff by the negligence of the company. There was a trial of the issues presented, to the court and a jury, and a verdict and judgment in favor of plaintiff. The company brings the case to this court by error proceedings. The plaintiff, on December 16, 1891, the date of the occurrence upon which this action is founded, was, and had been during some thirteen and one-half or fourteen months immediately prior thereto, continuously in the employ of the defendant railway company as a brakeman on freight trains running between Ravenna, as the eastern end of the run, and Seneca, as the western end. The trip between the two stations was made by trains on which the plaintiff was in the performance of his duties, during some days from Ravenna to Seneca and return, more frequently only the one way, either east or west in a day, and again less frequently with longer time intervening between the trips. Broken Bow is a station situated on the line of railway included in the trips made by trains on which plaintiff was employed. In the railroad yards at Broken Bow there was what is called a “spur,” — a track which was connected at its easterly end with the main track, or with a switch or sidetrack. The spur extended in a westerly direction to and beyond some coal sheds and lumber yards. At a short distance from the easterly end of the spur, and to the north of it, there stood a shed or “oil-house,” placed there by parties, patrons of the road. This oil-house was distant from the nearest rail of the spur
One of the questions presented for consideration and determination is whether, under the state of facts developed by the evidence in respect to the conditions existing in the yard of the company where plaintiff was at work when injured, and his knowledge of such conditions, the plaintiff, under the rules of law applicable, was entitled to a recovery. A list of questions was submitted to the jury and they returned what is known as a special verdict, as follows:
“The jury are directed to answer in writing each of the following questions:
“First. Q. How long had the plaintiff been in the employ of the defendant as a brakeman on its freight train prior to the accident?
“A. About thirteen and one-half or fourteen months.
“Second. Q. Had the plaintiff passed the oil-house in question, while switching trains, prior to the time of the accident, and if so, how frequently?
“A. Yes.’’
The crew of which the plaintiff was a member switched on this spur-track about three times a week, and passed over a portion of this spur-track from two to six times a day that they switched thereon. There is no testimony definitely stated how frequently plaintiff passed said oil-house.
“Third. Q. Was the work which plaintiff had done as a switchman in the yard at Broken Bow, and over the track in question, prior to the accident, done in daylight or at night?
*653 “A. Daylight.
“Fourth. Q. Did the plaintiff know, or could he have known by ordinary care and observation, of the existence and location of the oil-house prior to the accident, and if so, how long prior thereto?
“A. Plaintiff did know of the existence and location of the oil-house prior to the accident; and could have known of its existence and location from the early part of his service as brakeman.
“Fifth. Q. Did the plaintiff, after attempting to ascend the ladder, look to see if he was approaching the oil-house or any other structure located near the track?
“A. He did not.
“Sixth. Q. If you find that the plaintiff did not look to see if he was approaching the oil-house, then state why he did not look.
“A. The evidence does not definitely disclose the reason why he did not look, further than it appears that his attention was given to the uncoupling of the car and giving the signal that separation had been effected.”
The plaintiff testified that he knew of the oil-house and its location, and that it was there when he commenced work for defendant as a brakeman. One of the witnesses for defendant testified that while working for the company as brakeman on the same train with the plaintiff, prior to plaintiff’s injury, and on the spur or track where the injury occurred, witness sat down on the end of a car and let his feet hang over, and plaintiff called to him: “Look out for the shed,” referring to the oil-house. The plaintiff denies that he had any such conversation with the witness. It is clear, from an examination of all the facts and circumstances adduced in evidence on the point of the knowledge of the. plaintiff of the location of the oil-house, that the special findings of the jury in respect thereto embodied a correct conclusion. This being true, the special findings of facts were inconsistent with the general verdict, and when such a condition exists the former controls. (Code of Civil Procedure, sec. 294; Ogg v. Shehan,
Reversed and remanded.