58 Neb. 1 | Neb. | 1899
Action by Margaret E. Oyster, administratrix of the estate of Granville R. Oyster, deceased, against the Chicago, Burlington & Quincy Railroad Company to recover damages for negligently causing the,death of decedent. Plaintiff obtained a verdict in the sum of $5,000, and the defendant has instituted this proceeding for the purpose of securing a reversal of the judgment entered thereon.
A brief reference to the issues presented by the pleadings in the cause will aid in an understanding of the questions urged upon our attention. The petition avers the appointment and qualification of the plaintiff as administratrix of the estate of Granville R. Oyster, deceased; the incorporation of the defendant and the operation by it of a lino of road extending from the Missouri river through the city of Holdrege to the east line of the state of Colorado; the employment of decedent by the defendant as á locomotive engineer on and for some time prior to July 29,1894; that on said date, in the proper and careful discharge of the duties of his said employment, and under the directions of defendant and its officers and agents, the said Oyster was running the engine used to pull the regular night passenger train from McCook to Hastings, and when said engine arrived at the city of Holdrege it ran into an open switch, left the rails of the
The statute authorizes the action to be brought for the benefit of the widow and next of kin, and the petition should disclose all beneficiaries, — that is, whether the decedent left a widow or next of kin, or both; but it is very evident that the defendant was not prejudiced by the denial of its motion to require the plaintiff to aver in the petition whether a widow survived the intestate, for the reason the defendant subsequently pleaded in its answer that Margaret E, Oyster, who sued as administratrix, was the widow of the decedent, and the reply admitted such averment to be true. So all the beneficiaries were named in the pleadings, and the existence of a widOAV Avas not a controverted point in the case. Certainly the fact that one of the beneficiaries was not mentioned in the petition could militate only against the plaintiff, and that in the assessment of the amount of damages. There is no defect of parties plaintiff. Margaret E. Oyster Avas the sole administratrix of the estate, and the action Avas properly brought by her in her representative capacity for the benefit of those in whose behalf it Avas prosecuted. She Avas the personal representative of the intestate, and alone could maintain the action. The AvidoAv or next of kin were not necessary parties thereto, but the damages recovered inured to their exclusive benefit,
There is but little, if any, conflict in the evidence. It is disclosed that Granville R. Oyster, plaintiff’s intestate, was an experienced and careful engineer, and had been in the employ of the defendant for several years preceding the accident, in charge of an engine drawing a regular passenger train between McCook and Hastings. On the night of July 29, 1894, he started on his regular run from McCook, reaching Holdrege on the regular schedule time, about 12:40 A. M. West of this last named station is a switch connecting the main line with a side track. This switch had been negligently left open, so that a train from the west would enter the side track, instead of remaining on the main line. The switch had been usually provided with a lantern to serve as signal to trainmen of the position of the switch. White lights were exposed if the main line was open for the passage of trains, while red lights were exhibited if the switch was thrown for
In the first place it should be stated that the claim that the accident Avas occasioned by the negligence of a felloAV-servant of Oyster was not pleaded in the ansAver. The burden was on the defendant to establish the defense, and it Avell may be doubted whether it was available without being pleaded. (Chicago & A. R. Co. v. House, 50 N. E. Rep. [Ill.] 151; Nicolaus v. Chicago, R. I. & P. R. Co., 57 N. W. Rep. [Ia.] 694; Patterson v. Houston & T. C. R. Co., 40 S. W. Rep. [Tex.] 442.) The evidence, however, fails to reveal that it Avas a fellow-servant who locked the switch in question for the side track. It was shown that a train crew who had charge of a train which had arrived at Iloldrege that evening over the Edgar branch had been using this side track and the switch in question, but it does not appear any one of said crew
As to the defense of contributory negligence counsel representing the plaintiff below insist that it was not pleaded in the answer, and hence must be disregarded here. There is no room to doubt that it is an affirmative defense, and when relied upon must be raised by suitable averments. This court, in harmony with the decisions in other jurisdictions, has decided that a general allegation of negligence in a petition is sufficient as against a demurrer. (Omaha & R. V. R. Co. v. Wright, 49 Neb. 456.) And, by a parity of reasoning a general averment in an answer charging contributory negligence on the part of plaintiff is good, unless assailed by a motion to make more definite and certain. In the case at bar the answer, in general terms, as we have already seen, pleads that the negligence of plaintiff’s intestate contributed to the injury, and but for which the accident would not have occurred. The answer not having been assailed by motion, it must be held sufficient to raise the defense of contributory negligence. The argument in support of this defense is that there being no light displayed on the switch stand it was the duty of Oyster to have stopped his engine, and his failure so to do was in direct violation of the rules of the company, and the cause of the injury. There was introduced on the trial, over the objections of plaintiff, a book entitled “Rules of the Transportation Department,” which purports to have been issued by the general manager of the Burlington & Missouri River Railroad Company in Nebraska. Rule 65, as contained in said book, is in the language following: “A signal imperfectly displayed, or the absence of a signal at. a place where a signal is usually shown, must be regarded as a danger signal, and the fact reported to the superin
In the brief of the company it is stated that “the court permitted witness Daily (p. 15), Dr. Miller (p. 24), and Mrs. Oyster (p. 40) to testify as to Oyster’s physical condition after the hurt, the extent of his bodily injuries,
Dr. Miller, a physician and surgeon, Avas called to see Oyster shortly after the accident, and during the same night. The Avitness Avas permitted to answer but two questions, to Avhich objections had been interposed by counsel for defendant, Avhich questions, with the objections, and the ansAvers made by the Avitness follow:
Q. 'What condition did you find Mr. Oyster in?
Defendant objects, as immaterial under the issues joined. Overruled. Exception.
A. I found him prostrate from an injury.
Q. What sort of an injury?
Defendant objects, as immaterial under the issues joined. Overruled. Defendant excepts.
A. He had a fracture of the small bone of the left leg. as Avell as extensive injuries to the soft tissues and muscles and flesh.
The Avitness further testified, without objection, that he remained Avith the patient continuously, and rendered him proper and necessary medical treatment, until death, and that Oyster died from the shock resulting from the injury.
Mrs. Oyster testified that she arrived at Holdrege the morning after the accident and remained Avith her husband until the evening of July 31, Avhen he died. She testified, against objection of defendant, that she found her husband “just resting. He had not roused up from the accident, but did in a very few minutes.” -
It requires one with a keener perception than the writer
Some of the instructions to the jury given by the court at the request of the plaintiff are assailed as being erroneous. In the first three of these instructions the jury were told, in substance, that it was the duty of the defendant to use all reasonable care and foresight to provide such lights and signals for the switches as were necessary and reasonable for the safety of Oyster in the prosecution of his duties, and to exercise all reasonable care in inspecting and keeping in proper order and condition for use its lights, lamps, signals, and switches. The vice imputed to these instructions was that they did not inform the jury what constituted reasonable care. If the defendant desired the jury to be advised upon that point, it should have tendered an appropriate instruction, and requested the court to give it. Not having done so, it cannot predicate error upon the failure of the court to define what constituted reasonable care. (German Nat. Bank of Hastings v. Leonard, 40 Neb. 676; Barr v. City of Omaha, 42 Neb. 341; Gran v. Houston, 45 Neb. 813; Garter White Lead Co. v. Kinlin, 47 Neb. 409; Ferguson v. State, 52 Neb. 432.)
Instruction No. 4, given at the request of plaintiff below, reads thus: “You are instructed that the said Gran-ville R. Oyster was not obliged to know or inquire beforehand whether or not the switch was properly placed, and whether or not the proper lights and signals had been placed, but in the absence of absolute knowledge to the contrary he had the right to assume that all that could reasonably be done to render the roadway safe had been done; there is an implied undertaking or obligation on the part of the defendant with its employés to see that all that can reasonably be done to make the road safe had been done.” By this instruction the court did not purport or attempt to state principles which
In the sixth instruction the jury were told “that it was the duty of the defendant company to provide the said
The record shows that during an intermission of the court certain jurors in the case visited and examined the locality of the track, switch, and appliance at the scene of the accident, after which they returned .to the courtroom and the trial proceeded without the defendant having knowledge of the occurrence. This was a gross irregularity on the part of the jurors, but not sufficient to cause the. verdict to be set aside, for reasons now to be stated. The rule is that jurors must base their findings upon the evidence adduced on the trial, and may not make an inspection of the locus in quo, unless a view is authorized by the trial court. If a juror of his own accord, and without permission, visits and makes an inspection of the premises, or thing in dispute, it may be sufficient cause for vacating the verdict, but it will not have that effect if it is plain that such examination was not influential in obtaining the verdict. As stated by Start, J., in considering the same question in Rush v. St. Paul City R. Co., 72 N. W. Rep. [Minn.] 733: “Not every unauthorized view of the locus in quo will require the setting aside of a verdict. Considerations of practical justice forbid it. It would be an injustice to deprive an innocent party of his verdict simply because there was a casual inspection of the premises by some of the jurors, or because they were familiar with them. If verdicts were set aside for such reasons, there would bé no reasonable limits to litigation, especially in cities where the opportunities are great for jurors to personally view the locality of the accident under consideration. * *' * This rule must be given a reasonable operation, and not applied where there is only a possibility that the result was influenced by the alleged misconduct, but is to be applied where the court cannot determine with any
Affirmed.