111 Neb. 251 | Neb. | 1923
This action is brought under the federal employers’ liability act to recover damages for personal injury to the plaintiff, and the facts disclosed by the evidence are substantially as follows: The defendant, in connection with extensive stock-yards, operates a railroad and is a common carrier. The plaintiff had been engaged in railroading as a switchman for about 28 years, the last 14 of which were with the defendant, and the last 3 in and about the place in the yard where he was injured. At the time of the accident a string of 15 empty freight cars were standing at one of the docks or platforms in the stock-yards at which cattle were unloaded. The platform extended to within 5 or 6 inches of the side of the freight car when standing upon the track, and was 10 or 12 feet in width, presenting
The theory of the plaintiff is that defendant’s servants whose duty it was to close the gates back upon the inclosure of the pens were negligent in leaving the gate in question in the position it occupied at the time of the accident, and that such negligence was the proximate cause of his injuries.
The defendant by its answer presents three defenses: (1) That the proximate cause of the accident was plaintiff’s own negligence in using the side ladder on the car; (2) that plaintiff was on the side ladder in violation of the instructions of the defendant and of the custom of switch-men in the use of side ladders in close quarters; and (3) that the injuries received by plaintiff were the result of the risks of his employment and assumed by him. The case was presented to a jury under appropriate instructions, to which no objection is made, resulting in a verdict for the plaintiff for $32,000, upon which judgment was rendered, and, motion for a new trial having been overruled, defendant presents the case here for review.
We need not consider at any length the question of negligence of defendant. That was for the jury, and their find
On the question of violation of general instructions and the custom of switchmen, we do not think the rule or custom was of such a positive or definite character as to make the violation thereof a question of law. It was to operate only-in “close quarters,” and whether or not the operation being carried out presented a situation for the application of the rule presents a question of fact for the jury, and was such in this case. The movement of trains past the unloading docks was a usual movement, and if there were no obstructions upon the dock, the evidence seems to show that it was as safe to go down the side ladder as the end ladder. The plaintiff testified that he intended to remain upon the ladder until he had passed the loading dock. This he could do with perfect safety. The first and second defenses presented questions for the jury, and their finding thereon, being supported by the evidence, is binding upon this court.
The defense principally relied upon is assumption of risk; that the defect or condition’causing the injury was of such an obvious character that plaintiff, in the exercise of ordinary care, should have known of its existence, and is therefore chargeable with such knowledge, and yet selected the dangerous way, when a safe one was provided. The evidence shows that occasionally gates will jar loose and obstruct the dock. It does not warrant an inference that such was the cause in the present case. But the conditions shown were not of such general occurrence as to bring it within the rule as being a usual and ordinary risk of the employment.
The common-law rule of assumption of risk is in full force in federal jurisdictions, except in cases in which the rule
We do not understand the learned counsel for defendant to contend that in all cases not 'within the language of section 4 assumption of risk is a complete defense; though they cite Seaboard Air Line Ry. v. Horton, 233 U. S. 492, holding: “The employers’ liability act having expressly eliminated the defense of assumption of risk in certain specified cases, the intent of congress is plain that in all other cases, such assumption shall have its former effect as a bar to an action by the injured employee” — and Boldt v. Pennsylvania R. Co. 245 U. S. 441, approving that case. The manifest meaning of the clause quoted is that the rule shall remain a bar in those cases where it would have been a bar at common law. In fact, the first syllabus in the Boldt case states the rule as follows:
“Under the federal employers liability act, except in the cases specified in section 4, the employee assumes extraordinary risks incident to his employment, and risks due' to negligence of employer and fellow employees, when obvious or fully known and appreciated by him.”
It is evident that the extraordinary risks referred to are not risks due to negligence, but such risks as are incident to extra hazardous, as compared with other employments; and that risk of negligence of the master is only assumed when such negligence is obvious or known and appreciated.
The Horton case is to that effect. Horton, an engineer, was injured by the bursting of a water guage which was, not protected by a guard glass which was a part of the regular equipment. The guard had been furnished, but was removed by the fireman to be cleaned. Its absence was obvious and known to the engineer, and he was held to have' assumed the risk. The court said (p. 504) : “Some employments are necessarily fraught with • danger to the workman — danger that must be and is confronted in the line of
The following cases cited by appellant are not applicable, because the alleged defects were permanent conditions of which the employee was required to take notice: Schultheis v. United Railways Co., 236 S. W. (Mo.) 54, an iron post near the track; Tuttle v. Detroit G. H. & M. R. Co., 122 U. S. 189, sharp curves in the tracks in railroad yards; Choctaw O. & G. R. Co. v. McDade, 191 U. S. 64, the existence of a water tank close to the track; Central V. R. Co. v. Bethune, 206 Fed. 868, tracks too close together; Southern P. Co. v. Berkshire, 254 U. S. 415, mail crane close to the track. Other cases cited are where conditions were constant or of long standing, Butler v. Frazee, 211 U. S. 459; American Car & Foundry Co. v. Allen, 264 Fed. 647; or use of tools obviously defective, Pryor v. Williams, 254 U. S. 43; or the ordinary conditions incident to the occupation, Swasey v. Maine C. R. Co., 115 Me. 215; Reed v. Director General, 267 Pa. St. 86. Such cases are not in point.
Kirbo v. Southern R. Co., 16 Ga. App. 49, is cited. It was there held that plaintiff assumed the risk of injury resulting from neglect of the master to keep its electric lighting system in proper condition so as to furnish' the usual and necessary amount of light — an obvious defect.
From general principles and the cases cited, we think the rule may be safely stated to be that whether or not the defect due to the negligence of the master is of such an obvious character that the employee should have become aware of it in time to avoid injury, and therefore assumed the risk, is a question of fact for the jury in all cases where reasonable minds might differ.
In the instant case, while plaintiff might have seen the gate from his position on the car facing north, his duties required him to watch the switchman on the other end for signals and repeat them to the engineer. This situation continued until he was opposite chute 18 or 20, when he turned around to the south and west and started down the ladder facing east and looking down where he was going. Wé are, under the conditions, unwilling to hold as a matter of law that he should have seen the gate. That he did not see it is conceded. The question was for the jury.
Defendant strenuously objects that the damages allowed by the jury are so grossly excessive as to impeach the integrity of the verdict, requiring a reversal upon that ground,
The damages are for the determination of the jury, and it is with the greatest reluctance the courts will, in a manner, substitute their judgment for that of the jury. The record before us warrants no inference that the jury was so influenced by passion and prejudice as to require a reversal on that account. The verdict, however, does appear to be excessive. Defendant cites a great many cases where judgments have been reduced as excessive — seventeen were for the loss of a leg, for which the average allowance was $9,500; but it must be conceded that each case must depend upon its own facts, and the loss to plaintiff is aggravated by the fact that the experience of 28 years as a switchman has been rendered valueless, and a second operation probably required.
We have considered most carefully all the circumstances and the arguments of plaintiff’s counsel, and have reached the conclusion that the judgment should be reduced to $22,000. If plaintiff, within 20 days, files a remittitur of $10,000, the judgment will be affirmed; otherwise, it is reversed and remanded.
Affirmed on condition.