91 Neb. 493 | Neb. | 1912
This action was instituted in the district court for Douglas county. There have been two trials. On the first trial the court instructed the jury to return a verdict in favor of defendant, which was done and the cause was dismissed. From that judgment plaintiff appealed to this court, and upon a hearing here the judgment was reversed and the cause remanded for further proceedings. The case is reported in 89 Neb. 393. The facts as to the accident which caused the death of Martin Fitzgerald, and
The question of plaintiff’s right to maintain this action, unaffected by the settlement with the Chicago, Burlington & Quincy Railroad Company and the receipt of the fruits of that adjustment, was adjudicated in the former appeal, and the decision thereon has become the law of the case and must be considered settled. The subject will not be re-examined.
There was no eye-witness to the death of decedent. Others were present immediately thereafter — perhaps within a few minutes, or possibly seconds — and removed the body from the track between the cars. Death must have been instantaneous, as the head was crushed and the brain forced therefrom. The indications are that the arrival of the first person upon the scene must have been within a few seconds after the accident. The Burlington engine was standing at the north end of the string of cars to which- it had been or was to be attached. It is not shown that any member of that crew, except decedent, was present, and he was not in sight of defendant’s crew, he being between the front car and the Burlington engine adjusting a chain coupling; the coupling of that car having been broken and disabled. He was evidently in the discharge of his duty to his employer, and, .if the cars were unmolested, in a safe place. At that moment a train of cars, being pushed by an engine of defendant, and which was in charge of a crew, was sent against the rear of the string or train of cars, of which the disabled car formed a part, with such force as to drive that car against the engine, thus crushing and instantly killing decedent.
In the first instruction given to the jury, in which the issues presented by the pleadings were stated, the court used this language: “Martin Fitzgerald, you are instructed, came to his death in October, 1907, as the result of a train of cars under the control of defendant’s servants being intentionally propelled against another number of cars that were in close proximity and on the same
The next, last and most perplexing contention presented by this record is that the damages awarded by the judgment of the district court are excessive. As is shown by the former decision in this cause, the railroad company paid to the parents of-the decedent, during the lifetime of his mother, the sum of $4,400. It is also shown by this record that the relief department of that company paid her the sum of $2,200. This latter sum was in'the nature of an insurance for which decedent had paid, and we do not think it should be here considered. But the $4,400 paid as damages is entitled to consideration. Before the trial from which this appeal is taken, the mother of the decedent died, leaving the father and some minor children surviving her, but none of the children are of tender years, the youngest being 15 years of age at the time of the trial. The father was 53 years of age, in bad health, and yielding little for the support of the family. The decedent appears to have been a bright, competent, well-educated young man, and by his efforts the family were, to a great extent, supported. There is some conflict as to what his earnings from his employers were, but enough is shown to make it appear that the members of the family remaining at home were practically supported by him. Complaint is made that the proof of the bad health of the father is not sufficient. That he failed to contribute to the support of the family to any great extent is clearly established, as well as the fact that lie is without property.
The judgment of the district court will therefore be reversed and the cause remanded for further proceedings unless the plaintiff within 50 days enter in this court a remittitur of $300. If such remittitur is filed, the judgment of the district court will be affirmed for $3,700. The costs of this appeal to be taxed to plaintiff, all other costs to be taxed to defendant.
Affirmed.