58 Neb. 396 | Neb. | 1899
This action was instituted by the administrator of the .estate of William T. Dailey, deceased, to recover the damages alleged to have resulted from the negligence of the company by which the death of William T. Dailey was caused on February 17,1896, while he was an employé of the company as what is termed a “section-boss,” and engaged in the performance of his duties. To the petition there was interposed a general demurrer, which on hearing was sustained and the action dismissed, and a petition in error has been presented to this court in behalf of the plaintiff in the suit.
The petition was a somewhat extended and lengthy statement of the occurrences and circumstances upon which the action was predicated, and we deem it best not to quote it in full and to state herein but a few of the main facts. On February 17, 1896, William T. Dailey and two “section-men,” employés of the company, went over a portion of the line of the company’s road upon a hand-car, a part of the section to which they were employed to attend and keep in good condition. At the particular time in question the men were engaged in what is not inaptly termed in the petition “a required tour of inspection” of the particular part of the section of the line of road over which they then passed or ran the hand-car. They went to the northern termination of the section, and
The contentions in regard to the insufficiency of the petition, according to the arguments advanced here, may be said to have been that the section-boss, as an employé
Relative to the pleaded position of the parties at the time the attempt was made to remove the hand-car from the track just before it was struck by the locomotive, within the doctrine of this court announced of a similar set of circumstances there was sufficient pleaded to entitle the plaintiff to introduce his evidence and have the facts then passed upon by the court, or, if the evidence sustained the statements in the pleading, to have the verdict of the jury thereupon. The rule of this court to which we have just referred is to the effect that it cannot be said that the section-boss and the men were negligent in a contributory sense because they stayed on the track and attempted to take the hand-car therefrom, that it might not obstruct the way of the coming engine and car and jeopardize the safety of the approaching train and lives of persons thereon. (Omaha & R. V. R. Co. v. Krayenbuhl, 48 Neb. 553.) We must reach the conclusion that there was a. cause of action stated in the petition. The judgment must be reversed and the cause remanded.
Reversed and remanded.