85 Neb. 527 | Neb. | 1909
This is an action to recover for personal injuries. The plaintiff at the time of the accident was in the service of the defendant as a cook upon a dining car running from Omaha to the Pacific coast. About 4 o’clock of the afternoon of the day on which the accident occurred, a fellow employee, named Roberts, was sent to his house in Omaha to request him to assist in stocking a dining car for the road. The shortest way to the car was through the yards of the railroad company. Roberts and the plaintiff entered the yards near Seventeenth street, and from thence started to walk eastward between the eastbound and westbound main-line tracks along a smooth and well-beaten track toward where the dining car stood, Langenfeld being about six or seven feet behind Roberts. At this locality there are four parallel railroad tracks. The track is curved from Fourteenth to Seventeenth streets. There was a long string of freight cars standing upon the first track to their right. As they reached Fifteenth street going east, a passenger train belonging to the Illinois Central Railroad Company using the defendant’s tracks approached upon the south main-line track, going about 15 or 20 miles an hour, which was the.usual rate of speed at that point. It is admitted that there is about five feet clear space between the sides of passenger coaches on this track and box cars upon the next track.
The defendant first contends that the court erred in refusing to submit to the jury the question whether or not the approaching Illinois Central train was the proximate cause of the injury. The petition alleged that the Illinois Central train approached at a rapid and unusual rate of speed, and without signals, but there was absolutely no evidence to support this allegation of the petition. The undisputed evidence shows that the train was approaching in the usual and ordinary manner,' and at a rate of speed not unreasonable, under all the circumstances. The court instructed the jury that the sudden approach of that train was not the proximate cause of the injury, and should not be considered, except as a circumstance in explaining the conduct .of the plaintiff and in determining whether he was guilty of contributory negligence in doing what he did. We think there was no error in this.
For convenience, we will consider these points together, except the assignment as to contributory negligence. What Avere the plaintiff’s rights, if any, between the tracks? We cannot accede to the position that he was a mere trespasser there. On the contrary, we think that the evidence shows such a permissive use of the. way between the tracks by the employees of the defendant that there was an implied invitation to its use by plaintiff and other servants of the company when going to and from their work, or while engaged upon the company’s business. This being so, the defendant was bound to use ordinary care to keep the way safe, so that persons using it would not be exposed to dangers other than might be reasonably expected in such locality. So far as shown by the testimony, this was done. If the defendant had been injured by a negligently and improperly loaded car whose load projected over the way, or if, while on the usual path, he had been injured by the negligent operation of a train,
Plaintiff asserts, however, that the sudden approach of the Illinois Central train made it necessary for him to step between the box cars, and that the defendant owed him a duty of keeping such cars in repair. But his testimony clearly shows that he was fully advised of the dangers of the place in which he was walking, and the approach of the Illinois Central train was a circumstance which he must have foreseen. He can therefore base no claim against the defendant on account of its approach in the manner that it did.
It has been well said that, “in order to constitute actionable negligence, there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure.” Means v. Southern C. R. Co., 144 Cal. 473, 1 Am. & Eng. Ann. Cases, 206; Indiana & Chicago Coal Co. v. Neal, 166 Ind. 458, 9 Am. & Eng. Ann. Cases, 424; Faris v. Hoberg, 134 Ind. 269. The petition must allege these essential elements, and the proof must support the allegations, or there can be no recovery. The petition in the instant-case may set forth sufficient facts to warrant a recovery, though this we do not decide, but the evidence falls far short of proving the material averments thereof. The
Another charge is that the Illinois Central passenger train approached at a rapid and unusual rate of speed, and without signals or Avarnings, and was almost upon the plaintiff before he was aware of its presence; but he testifies that he saw it when it was about a half block away, and there is no evidence to shoAv that the rate of speed was excessive or unusual.
The next allegation is that, in order to save himself, the plaintiff hurriedly stepped away from the track, and stepped between the freight cars, and that, while so standing, the cars were moved by the switch engine without signal or warning; but there is no evidence that the cars Arere moved without signal or warning, or in other than the usual manner, or that the defendant knew or should have known of his dangerous position.
Does the evidence establish the fact that the defendant oAved plaintiff a duty in respect to the defective cars? He was not in any Avay connected with the operation of the freight train, hence he was under no obligation to his employer to go between the cars. The cars Avere upon a track Avhere to plaintiff’s knowledge they were liable to be moved at any time, and, even if the drawheads had been perfect, the position between them was one of danger. The license was to use the path between the tracks, and the
The case does not fall within the rule that, where one negligently places another person in a position of sudden danger, any injury AA'hich he may suffer by reason of the instinct of self-preservation is taken to be the effect of the dangerous exciting cause, for in this case the evidence fails to shoAV any negligent act on the part of defendant, or any one else, causing a sudden or unusual circumstance calculated to deprive the plaintiff of his presence of mind to such an extent that he acted involuntarily. We think the evidence is insufficient to affirm
The judgment of tbe district court is reversed and cause remanded for further proceedings.
Reversed.