100 Neb. 734 | Neb. | 1917
On September 15, 1913, the plaintiff’s intestate, Edward O. Henderson, was a .brakeman on a local freight train of defendant running from Columbus, Nebraska, to Council Bluffs, Iowa. At Elkhorn, Nebraska, it became necessary to place a coal car loaded with sand at á point west of the station in order to be unloaded. In so doing the engine, a Rock Island box car of ordinary width and Union Pacific coal car No. 11088 were backed by the engine in and upon a side track known as the house track. The yards for loading stock were situated contiguous to and on the south side of this track. The method used in switching was to back the engine quite rapidly, and, while running, a signal was given to the engineer, the engine was stopped, the coal car uncoupled and carried by its own momentum to the point where it was desired to place it. The operation is generally known as “kicking in.” It is necessary for the coupling pin to be pulled while the cars were in motion. For this purpose Henderson, when last seen alive, was riding with his foot in a stirrup which projected below the ladder on the side of the coal car, holding to a round or handhold on the side of the car with his left hand, stooping over, and with his right hand upon the lever with which to raise the pin. He was riding on the engineer’s side' so as to give signals.. As the train backed at a speed of about. 12 miles an hour, the circumstances clearly indicate that he was struck by the projecting platform of the stock-yards and knocked from the car. His foot was cut off and he was dragged by the engine about 10 or 50 feet and killed. The distance from the outside edge of the rail to the edge of the platform was three feet. The distance from the edge of the rail to the
The petition alleges negligence in.the placing of the cattle chute so close to thé track, that the car was of excessive width, and that the train was operated at a negligently high rate of speed. . The answer denies that the death occurred in the'manner alleged in the petition on account of any negligence or carelessness on the part of the defendant, and further alleges that the death of Henderson was “due to causes to which his own carelessness and negligence proximately contributed, and resulted from dangers and risks which were incident to his employment, and open, apparent, obvious and known to the said Edward G. Henderson at the time of said injuries, and which were assumed by him.” The jury returned a verdict for $11,000, for which amount judgment was rendered.
The stock yards were erected at a time prior to the use of the wider coal cars. At the time the platform was erected it was probably reasonably safe and the company had fulfilled its whole duty, but by the subsequent use of the wider cars the distance between the car and the platform was lessened and the danger greatly increased. Accidents owing to the use of wider or higher cars than were usual when permanent structures near the track were built have occurred before. In one
In Texas & P. R. Co. v. Swearingen, 196 U. S. 51, the side of a scale box erected near the track was shown by the evidence to be only 9% inches from a ladder on the side of a car moving upon the track. A brakeman was riding on a box car with his foot in the stirrup under the ladder and was looking backwards for a signal from the yardmaster, as it was his duty to do. His shoulder struck the scale box and he was knocked down and severely injured. He was riding on the north side of the car so as to signal the engineer. The evidence in that case was much the same as in this.. It was shown that the customary position of a switchman while riding on a car ladder is to swing out from the car with his body, and that a well-developed man could not pass the scale box on the ladder. The plaintiff admitted that he knew of the nearness of the scale box, but said he was not thinking about it. It was contended in that case that the jury should have been instructed to find for the defendant for the reasons that the scale box was erected at a reasonably safe distance from the track, that the plaintiff knew of its location with reference to the track, that the danger was open and obvious and he assumed the risk therof. It was said in the opinion by Mr. Justice White: “Prima facie, the location of scales where the tracks were only the standard distance apart, and where a space of less than two feet was left for the movements of a switchman between the side of a freight
Defendant insists that the evidence shows that the deceased, from having been employed on the stock pickup and afterwards upon the local train, must have been sufficiently familiar with the situation of the platform so that he assumed the risk. We think there is not sufficient proof that Henderson knew of the dangerous condition, or that it was so patent and obvious that he would be charged with notice of it. This being the case,' the question was for the jury, and was properly submitted by the instructions of the court. The defense of contributory negligence is not sustained by the evidence if Henderson was not aware of the dangerous proximity of the platform, as the jury must have found.
Complaint is made that the verdict is excessive. It is shown that for nearly two years Henderson had no regular
The case seems to have been fairly submitted to the jury, and the judgment of the district court is
Affirmed.