90 Neb. 606 | Neb. | 1912
Lead Opinion
The facts in this case are stated in a former opinion, Glantz v. Chicago, B. & Q. R. Co., 87 Neb. 60. The case was there reversed on account of errors in the instructions, the question of the sufficiency of the evidence being reserved. Upon retrial plaintiff again prevailed, and from a judgment on a verdict in his favor defendant appeals.
All questions of law were disposed of in our former opinion. The testimony offered upon the first trial was, by stipulation, read to the jury, and was supplemented by the testimony of the witness Snell, and additional testimony from the witness McCutchan. The one issue of fact reserved was presented to the jury in the following instructions :
“4. It is contended by the plaintiff that the defendant was guilty of negligence because at the time of the accident no man was stationed on the foot-board of the tender as a lookout to warn employees of the approaching tender.
“Touching this contention of the plaintiff, you are instructed that if you find from the evidence that at the time and place of the accident there was no rule or custom of the defendant company to keep such a man stationed on the foot-board as a lookout, having as one of his duties that of warning sectionmen and others in danger, and that this was known to the deceased, or was to plaintiff an obvious fact which he should have known, then in such case the failure of the defendant company to have a man stationed on the foot-board at the time of the accident*608 would uot constitute negligence upon its part such as to create any liability against them, for the reason that the deceased by continuing in their employment under such circumstances would be held to have assumed any risk of danger arising from the fact that no man was stationed on the foot-board as a lookout.
“5. But it is contended by the plaintiff that there was a custom at the time and place of the accident, according to which the defendant company did keep a man stationed upon the foot-board as a lookout, and the plaintiff contends that at the time of the accident the deceased had a right to rely upon such custom, and that a man would be stationed on the foot-board who would warn him of his approaching danger. The defendant denies that any such rule or custom existed at the place where the accident occurred, their contention being that men were stationed on the foot-board only as their convenience or work required it, and that no man was stationed there for the purpose of a lookout to warn people. They contend that this was known and obvious to the deceased and others working, and that sectionmen understood that it was a duty devolving upon them to keep out of the way of approaching tenders and • cars. This presents the sole question of fact which you are to determine from the evidence.
“If you find from the evidence that no such custom existed as contended by the defendant, then your verdict should be for the defendant in this action; and this would be true whether you think the failure to have a man stationed there would be negligence on the part of the railroad company or not, because by remaining in their employ under such circumstances he would have assumed the risk and waived any liability by reason o-f their failure to have a man stationed upon the foot-board.
“If, on the other hand, you find that there was such a custom upon - the part of the railroad company at the time, to have a man stationed on the foot-board' as a lookout, then you should direct your attention to the*609 question whether or not, considering the nature of the work that the plaintiff and the work that the defendant were engaged in at the time, the defendant was negligent in not haying a man stationed on the foot-board as a lookout to warn sectionmen of the approaching danger. If you find that the defendant was guilty of negligence in this particular, and that such negligence was the proximate cause of the death of the deceased, and you further find that he was not guilty of contributory negligence upon his part and that the plaintiff has been damaged by the death of the deceased, then the plaintiff would be entitled to recover in this action in the amount of their damages.”
Some objection is made to instructions 1, 2 and 3, but we do not think they are open to the criticisms made upon them. The main contention of defendant is that the evidence is so clearly insufficient to sustain a verdict in favor of plaintiff that the court should have directed a verdict in favor of defendant. In this contention we are unable to concur. By instructions 4 and 5, above set out, we think the court properly submitted the important question involved, viz., whether there existed in the yards at Havelock, at the time of the accident in controversy, a custom, upon which deceased had a right to rely, to have a man stationed on the foot-boards of its switch engines when-at work in the yard, for the purpose of guarding against injury to employees or other persons who might be upon or in dangerous proximity to the defendant’s tracks. In a yard as busy as that at Havelock is shown to be, where the switching “is always around a curve,” it ought not to require strong evidence of such a custom to warrant the submission of the case to a jury. The dictates of common humanity would seem to demand such a custom; and when we consider that in every switching crew there are not less than two men, in addition to the engineer and fireman, the practicability of the custom becomes apparent.
Let us take the testimony of the witnesses as set out in
The burden of defendant’s cross-examination seems to have been to get the witnesses to testify that an employee, when riding upon the foot-board of an engine, was not
We think the testimony above outlined was sufficient to take the case to the jury upon the question as to whether or not at that time there existed in the yards of the defendant at Havelock a custom, usually followed, of keeping a man stationed upon the front of a car when a string of cars was being switched, or upon the foot-board on the front end of the engine when it was proceeding forward alone, or upon the foot-board on the rear of the engine when it whs backing up, for the purpose not only of “lining up the switches,” but for the further double
It is urged that the amount of the recovery is excessive; but we cannot say that it is so clearly excessive as to warrant us in substituting our judgment for that of the jury and the trial court.
The judgment of the district court is therefore
Affirmed.
Dissenting Opinion
dissenting.
I cannot concur in the conclusion reached by the majority of my associates in this case. As a ground for a recovery the plaintiff alleged that it was the custom of
In the case at bar it was shown that the engine bell was ringing at the time the accident in question occurred. It was also sIioavu that there was a great amount of noise being made by a passing freight train and so it may be said that if a man had been stationed upon the foot-board of the engine in question at the time this accident occurred he could not have made himself heard above the noise of the bell and the passing train so as to have given the deceased any warning at all of the approach of the engine.
Without extending this dissent to any greater length. I conclude by saying, that to my mind there is no competent evidence in this record to show the existence of the custom on which the plaintiff must rely in order to sustain the judgment of the trial court, and upon this question I appeal to the record.
It appears that at the. close of the testimony the defendant requested the court to direct a verdict in its favor. I am of opinion that the request should have been granted; that it was error to .submit the case to the jury, and the judgment of the district court should be reversed.
Dissenting Opinion
dissenting.
I am of the opinion that the evidence is not materially changed from that produced at the former trial and is insufficient to justify the submission to the jury of the question whether the alleged custom existed.