104 Neb. 491 | Neb. | 1920
A judgment for the plaintiff in this case was reversed upon a former appeal. Merkouras v. Chicago, B. & Q. Co., 101 Neb. 717. Two judges dissented from the former opinion, and a third did not sit in the case. The gist of the former decision is expressed in the second and third paragraphs of the syllabus, which are as follows :
“A railroad company, in ordering the movements of its cars, would not anticipate that two men would engage in scuffling upon its track, especially so when the men were its employees, working in its switch-yards and momentarily expecting the approach of cars.
“A railroad company does not owe its employees, engaged in its yards in which engines are constantly moving, the duty of keeping a constant lookout to warn them of dangers of which they already have knowledge.”
A new trial Resulted in a verdict for the plaintiff, and defendant appeals.
After reversal, an amended petition was filed pleading that plaintiff, while passing along the yard adjacent to the switch in front of the icehouse, was seized by another workman and thrown upon the track and held upon it at a place where he and his fellow servants were in the habit of being, and where they were of necessity required to be at times in the discharge of their duty in putting ice in the cars, and at a place where defendant had reason to expect him to be in the discharge of his duty. It is then. alleged, as before, that the defendant, in violation of its own rule 102, without giving warning, negligently backed a train of cars over the plaintiff and negligently failed to stop the cars after it should have been aware of plaintiff’s perilous position.
The trial court instructed the jury that the rule is ambiguous, and testimony was received as to.its interpretation, but we think the burden of proof was not sustained as to the act of moving, the cars in this yard not being within the exception.
But assuming that the evidence sustains the verdict in this respect, may the plaintiff recover?
The testimony is much the same as at the former trial. In fact, much of it was read from the bill of exceptions, except that there is evidence bearing upon the new matter pleaded in the amended petition. Plaintiff says that Johnson jumped upon his back and forced him down upon the track, and this seems to be fairly well established. If plaintiff is correct in this, it seems to us that he cannot charge the defendant with the wrongful act of Johnson.
Unless the injury received by plaintiff was a natural and probable consequence of the negligence of defendant with no intermediate causal agency, there can be no liability. Kitchen v. Carter, 47 Neb. 776. The act of Johnson -was a new' and independent force, operating to cause the injury, and if it had not been exerted the accident would not have happened.
In such circumstances, the question is: “Was there an unbroken connection between ■ the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous, succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the
But, even if plaintiff and Johnson went upon the track and wrestled there, they voluntarily placed themselves in a position of great danger in such a manner as to make it difficult to remove from- the track if it became necessary to move speedily. There was no necessity for them to be where they were at that time, they were not directed there, nor did their duties require their presence;- in short, they were not then engaged upon their employer’s business, but upon an affair of their own. Under ordinary circumstances plaintiff would have had ample time, at the very slow rate the cars were moving, to step aside and thus avoid injury, but he and his playmate voluntarily placed themselves in such an attitude as to make this impossible. Under the statute it is only when the,negligence of the plaintiff is slight when compared with the gross negligence of the defendant that
The judgment of the district court is reversed, and the cause dismissed.
Reversed and dismissed.