40 Neb. 645 | Neb. | 1894
This was an action under chapter 21, Compiled Statutes, by Miranda Wymore, as administratrix of John K. Wymore, deceased, against the plaintiff in error for damages caused by the death of said John K. Wymore. On the 25tb day of August, 1890, at about 2 o’clock in the morn
The assignments of error argued relate to the instructions. The second instruction given by the court is as follows:
“ Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury; and in this connection the court instructs you that it was the duty •of the railroad company to provide and furnish its employes with proper and suitable machinery, implements, and equipments to operate its trains with reasonable safety.
The first objection to this instruction is based upon the argument that the company owed no duty to a trespasser upon its grounds except where the company was guilty of wanton or willful negligence after discovering the position of such trespasser. A number of cases are cited in support of that argument. The same argument was advanced in the case of Chicago, B. & Q. R. Co. v. Grablin, 38 Neb., 90, and this court refused to adopt the doctrine contended for. It is true that no special duty is in such case devolved upon the railroad company in favor of the particular person injured, but the general duty still does remain of operating its trains with due regard to the safety of all persons who are or who may be reasonably expected to be
It is also objected to this instruction that there was no evidence upon which to found that portion of it wherein the jury was told that negligence might be inferred, in case the facts were so found, from the failure of the company to furnish the brakeman a key suitable for the purpose intended. The evidence upon this point is that this key had been furnished the brakeman the day before; that all the keys and locks upon the line were uniform, the keys being furnished from the supply department through the division superintendent to the brakemen and conductors; that this key had operated by unlocking switches at Alliance the day before, but that repeated attempts to unlock this switch with it proved unavailing. We think this evidence is sufficient to found the instruction. In a matter so important as the proper opening and closing of switches the jury could properly infer that the company was negligent in sending out a brakeman equipped with a key which it was not known would properly control all the locks which he might have occasion to 'use. The evidence showed without contradiction that this key would not unlock this particular lock, and there was no evidence tending to show that any test had been made of it before the accident or that any precautions had been taken to ascertain its safety.
The third objection made to the instruction quoted is ■directed to that portion of it which told the jury that the company might obstruct its road for a period of ten minutes, and that a traveler, after waiting such time, had a right to go around the obstruction, and if in doing so he was vigilant and careful to avoid apparent danger, he would not be guilty of contributory negligence. We can see an objection to this language in its reference to the period of ten minutes, which counsel concede was based upon a mis
After the jury had retired it returned with the following question: “Had the deceased the right to go upon the premises where he was killed without waiting for the expiration of ten minutes, or was he bound to wait before going around the train?” The first portion of the answer made to this question was as follows : “He was not bound to wait. He had the right to go around the train and if he was vigilant and careful to avoid apparent danger. He was not guilty of contributory negligence simply by going around the train, unless he was struck while standing on the track of the railroad, or so close to it that a train moving upon the track would have extended so far beyond it as to reach him and injure him.” The court followed this language by much more, not-in response to the question asked, but not in its nature prejudicial to the railroad. We think, however, that there was error in the language we have quoted. The instruction first quoted practically told the jury that attempting to cross the track before waiting ten minutes would constitute contributory negligence. This was error in favor of the company. The instruction last quoted as peremptorily told the jury that attempting to cross at any time was not contributory negligence, provided the deceased was vigilant and careful in crossing. 'Whether or not such an act would constitute contributory negligence would depend upon circumstances. If one attempts to cross a track, observing a train near him and approaching at a high rate of speed, he might be guilty of
The defendant pleaded, and the evidence shows, that an organization existed, of a very peculiar constitution, known as the Burlington Voluntary Relief Department. The scheme of this association was that the employes of this and certain other associated companies contributed certain amounts from their wages to the association. These amounts were withheld by the company from their pay. These payments constituted a species of insurance fund to be paid out to the employe in case of injury or to a beneficiary named by him in his application for membership in case of his death. The railroad furnished the clerical force for the management of the department, kept the custody of the funds, and paid to the association interest upon monthly balances. It also guarantied the payment of losses. The deceased was a member of this association, and the beneficiary named was his wife, the plaintiff herein. His application for membership contained the following provision: “I also agree, that in consideration of the amounts paid and to be paid by said company for the maintenance of the relief de
We repeat that the broad question is not before us. If the facts exist as claimed by the plaintiff, the circumstances were such that Wymore might have maintained an action had he lived. He had not waived his right of action. He undertook to contract that the beneficiary named in the contract might waive it by accepting the benefit; but this action is not for the benefit of his estate, but for that of his widow and next of kin, and the measure of damages is not what he might have recovered had he lived, but their pecuniary loss by reason of his death. Whether or not he could, by a compromise after the accident before his death, deprive them of their right of action, he could not contract away their rights before the injury and without their consent; nor could he contract that the widow might, after his death, deprive the next of kin of their remedy. The children, of whom there were eight, were not beneficiaries in the contract, and his contract and the widow’s accept
Reversed and remanded.