42 Neb. 793 | Neb. | 1894
Margaret E. Baxter, administratrix of the estate of George Edward Baxter, deceased, brought this suit in the district court of Saline county against the Missouri Pacific Railway Company (hereinafter called the “Railway Company ”) for damages, under chapter 21, Compiled Statutes, 1893, for the death of her intestate, her husband, alleged to have been caused by the negligence of the Railway Company. The administratrix had a verdict and judgment and the Railway Company brings the case here for review.
There are many errors assigned and argued in the brief of counsel foe the plaintiff in error; but as we have reached the conclusion that the petition of the administratrix filed in the court below does not state facts sufficient to constitute a cause of action, and that the judgment of the district court must, therefore, be reversed, it becomes unnecessary to consider any question in the record except the sufficiency of such petition. The petition of the administratrix alleged the death of George Edward Baxter; her appointment as administratrix of his estate; that he was her husband, and at the time of his death left the administratrix, his widow, and two minor children him surviving. The petition further alleged:
“ (4.) That the defendant had so negligently, carelessly, and unskillfully constructed its railroad track at Talmage,*798 both upon the main track, side tracks, and spur tracks, that any one who was an employe of said company, using due diligence, care, and skill in transacting the business of said company, was liable to be injured, hurt, and damaged on account of the negligent, careless, and unskillful manner in which the said track of the defendant was constructed at Talmage; that the said George Edward Baxter, while employed by the defendant at a reasonable salary as a compensation for his services, in the exercise of due care and skill upon his part in coupling the cars upon the side track of the defendant at Talmage, did, without any negligence upon his part, but on account of the negligence, carelessness, and unskillfulness of the defendant in the construction of its railroad bed, side tracks, and spur tracks, in not properly blocking and filling up the space between the outside rail and guard rail, have his left ankle caught just above the heel, between the guard rail and outside rail of said track, which threw him under the trucks of said cars, and he was thereby killed, which said killing was on account of the carelessness, negligence, and unskillfulness on the part of the defendant in the construction of their railroad, and while the said George Edward Baxter, the employe of the said Railway Company, was acting directly under the orders of the conductor of said train of which he was brakeman, and while he was using due care, diligence, and skill in the transaction of the business of said Railway Company.”
The administratrix also alleged in her petition that her husband, at the time of his death, was thirty-three years old. At that time he was employed by the Railway Company as a brakeman on a train running between the stations of Crete and Talmage in Nebraska, “ including the main line of road at Talmage, the side tracks, spurs, and other tracks necessary to be used and operated by said Railway Company at said place in connection with their business to and from Crete in Saline county, Nebraska.”
In Tuttle v. Detroit, G. H. & M. R. Co., 122 U. S., 189, it is said: “ When a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself.”
A switchman employed in a railway company’s yards, in helping to make up and distribute trains, while engaged in his employment “caught his foot in a frog” which connected two converging tracks and was used to effect the transfer of cars from one track to the other, and before he could release himself he was run over and killed. His administratrix sued the company for damages, alleging that it had been guilty of negligence in not “ blocking its frogs.” The switchman had been in the employ of the company for some years, and employed in and about the yard in which he was injured for quite a length of time prior thereto, and was acquainted with the frog and knew that it was not blocked. It was held that the switchman, in accepting and continuing in the employment, assumed the hazard of all known and obvious dangers, and that he was charged with notice of the difficulty of removing the foot when caught in the frog, and of the danger to be apprehended therefrom, and that, therefore, he could not recover. (Appel v. Buffalo, N. Y. & P. R. Co., 111 N. Y., 550.)
In Mayes v. Chicago, R. I. & P. R. Co., 63 Ia., 562, it was held: “Where defects in a railway are obvious to all employes, one who knows of such defects, or by the exercise of ordinary care might know of them, but, without
In Rush v. Missouri P. R. Co., 36 Kan., 129, the facts were: The railway company in the construction of its railway did not use any blocking or other protection between the main rails of its track and the guard rails. A servant of the railway company was employed as a switchman for about two and one-half months in one of the railway company’s yards, and while in the discharge of his duty he stepped between the main rail and the guard rail of one of the tracks and was killed. His administratrix sued the railway company for damages. The court held “that the condition of the railway tracks and the danger must have been known to the employe, and, therefore, that he assumed the risk.”
In Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520, it is said : “A servant accepts the service subject to the risks incident to it; and where, when he enters into the employment, the machinery and implements used in the master’s business are of a certain kind or condition, and the servant knows it, he voluntarily takes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.”
In Chicago, R. I. & P. R. Co. v. Lonergan, 118 Ill., 41, it was held: “A person who engages in the service of a railroad company in the running of its trains is presumed to do so with a knowledge of the dangers incident to such service, and he assumes the risks of its ordinary hazards. An employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required from the employer.”
In Smith v. St. Louis, K. C. & N. R. Co., 69 Mo., 32, it is said : “ Railroad companies are bound to use appliances which are not defective in construction; but as between them and their employes they are not bound to use such as are of the very best or most improved description. * * A brakeman who continues in the service of a railroad company with knowledge that the guard of a switch is made of T rail, cannot recover for injuries sustained in consequence of his foot being caught between the guard and the frog, notwithstanding it may appear that if the guard had been made of a different rail it would have been less dangerous.”
In Lake Shore & M. S. R. Co. v. McCormick, 74 Ind., 440, it is held: “An employe, when he enters the service of an employer, impliedly agrees to assume all risks ordinarily and naturally incident to the particular service; and the employer impliedly agrees that he will not subject the employe, through fraud, negligence, or malice, to greater risks than those which fairly and properly belong to the particular service in which the employe is to be engaged. The employer’s obligation is not to supply the employe with absolutely safe machinery, or with any particular kind of machinery, but to use ordinary and reasonable care not to subject the employe to extraordinary or unreasonable danger.”
These authorities establish three general rules:
(1.) That a servant by his contract of service assumes the ordinary risks incident to such employment.
(3.) That a master is not bound to .adopt the newest or the safest machinery, tools, or appliances for the safety of his servants.
It will be observed that the only ground of negligence charged against the Railway Company in this case in the petition of the administratrix is the failure of the Railway Company to block the spaces between the guard rail and the rail of its main track. The petition does not allege, when Baxter entered the service of the Railway Company, that he was inexperienced when he entered its employ; how long he was in its service before he was killed; that he did not know at the time he entered the service of the Railway Company that the spaces between the guard rails and'rails-of its main track were unblocked; that he did not know the guard rail was unblocked at which he was injured; that the Railway Company promised him, in consideration of his remaining in its service, to block its guard rails; nor that guard rails blocked are less dangerous than unblocked. In other words, this petition does not contain averments of fact which negative the presumption that the injury received by Baxter was one of the risks which he assumed by virtue of his employment. We have no doubt but that the failure of the Railway Company to block its guard rails is an evidence of negligence- on its part; and if this were a suit by a passenger of this Railway Company for injuries such passenger had sustained by reason of such default on the part of the Railway Company it might be liable. But this is not the case before us. If this were a suit by one not a passenger and not an employe of the company,
Reversed.