49 Neb. 475 | Neb. | 1896
This was an action by McCarty against the railway company to recover for personal injuries sustained by McCarty while in the employ of the company. He recovered a judgment for $10,000. The railway company, by petition in error, seeks to reverse this judgment. McCarty, by cross-petition in error, seeks also to reverse it, on the ground of error in sustaining a motion for a new trial after a former verdict in his favor for $15,000, and to have judgment entered on such former verdict.
The cross-petition in error may be briefly disposed of. The motion for a new trial after the first verdict contained numerous assignments requiring for their review a consideration of the evidence. ' What purports to be a bill of exceptions embodying the evidence on the first trial, and also certain evidence used in support of the motion for a new trial, is not authenticated as the law requires and cannot, therefore, be considered. Error in sustaining the motion, therefore, does not appear, for this reason if for no other.
On the second trial the evidence, which was, except in a few details, uncontradicted, was to the following effect: McCarty had had some experience in railroad work in the general line of service in which he was employed by this company. He had been employed by Butler, a foreman of a construction crew, some eight weeks prior to the accident, and during that interval his work had been with a crew engaged in moving earth by means of a steam shovel. This shovel occupied a temporary track from twelve to eighteen feet from the main track. A train of flat cars, moved along the main track, was loaded by means of the steam shovel and then drawn several miles away for the purpose of unloading. The train had a conductor, engineer, and a fireman, as well as two men designated as “cable men,” whose duty it was to assist in the unloading of the train. At the shovel, in addition to Butler and the men operating it, were four laborers,
Our conclusion, after a consideration of the subject, is that it is a harsh and unreasonable rule which charges a servant, when commanded to perform an act by his master, with the duty of at once determining whether or not the act can be safely performed, and then performing it at his peril, or refusing to perform it at the expense of losing his employment. The risk incurred by obeying a negligent command of the master is not one ordinarily incident to the servant’s employment, and is not an assumed risk, because negligence on the part of the master is not presumed to be a feature of the employment. It is true that where ample time exists for examination and reflection, a servant may not, beyond a certain limit, continue in the service, performing dangerous acts, except at his own risk; and it is this consideration which governs the cases holding that the continued use of defective appliances without protest and a promise by the master to remedy them, discharges the master from liability. With the case, however, of a command given suddenly, which must be obeyed immediately or not at all, a different question is presented. The servant is confronted with a new danger, one not contemplated when he entered the employment, and one not made a part of it by •continued use. The servant has certainly in the first place a right to presume that the master gave the com
The district court, evidently endeavoring to follow the general principles which we have indicated, and guided largely by the language of Judge Brewer in English v. Chicago, M. & St. P. R. Co., supra, gave the following instruction: “It is in general the duty of an employe to-obey the orders of his superior, and in the absence of knowledge or means of knowledge to the contrary, he may presume it safe for him to do so. However, he may not obey blindly and without regard to his personal safety; for it is incumbent on him to protect himself by the exercise of such care and diligence as the circumstances require. But when he receives an order which must be obeyed immediately or not at all, and when he has no time or opportunity for considering the situation or the danger, if any, of a compliance with the order, he may rely on the skill and judgment of his superior, unless to obey the order would be reckless, rash, or foolhardy on his part. If to obey would be so dangerous as to indicate that the employe had abandoned all care and consideration for his own safety, then obedience would be negligence in itself, which if it contributed to the injury would prevent a recovery.” We think there was error in this instruction, notwithstanding the general principles we have indicated; although the language employed does, not perhaps go beyond that of Judge Brewer in the
Reversed and remanded.