40 Neb. 889 | Neb. | 1894
John Oleson sued the Chicago, Burlington & Quincy Railroad Company in the district court of Lancaster county for damages for an injury which he alleged he had sustained through the negligence of the servants of said •railroad company. In his petition Oleson stated that in December, 1888, he was in the employ of said company and was one of a force of men engaged at said time in repairing a track belonging to said company; that he and the other men with whom he was at work were in charge of a foreman named Patrick Welsh, whose orders it was his duty to obey; that while at work upon said track, and while attempting to raise the same by means of a “jack,” it became necessary to oil said “jack,” and that the foreman negligently and carelessly ordered him, Oleson, to jump aboard an approaching engine then owned and operated by the company and procure a can of oil for the use of the men engaged in raising said track; that in obedience to the order of the foreman he, Oleson, attempted to jump aboard said moving engine and in doing so slipped and fell and was injured, without any fault or negligence on his part. The answer of the company was a denial of any negligence on the part of itself or foreman, and contributory negligence on the part of Oleson. Oleson had a verdict and judgment and the company brings the case here for review. There are numerous errors assigned, one only of which we notice.
Among the instructions given to the jury by the district judge was one in the following language: “If you find from the evidence that Patrick Welsh was an employe of ■defendant company and had control and direction of the plaintiff; if you find plaintiff was an employe of defendant at the time and place that the injury was received, and if you find from the evidence that plaintiff, as such employe, was bound by the terms of his service to obey the
Reversed and remanded.