49 Neb. 130 | Neb. | 1896
In this action, which was brought in the .district court of Otoe county, plaintiff recovered judgment on the verdict of a jury in the sum of $2,500. He alleged in his petition that about October 9, 1890, he shipped over the defendant’s road certain live stock from Scio to Chicago; that the train by which the shipment was made stopped at Weeping Water and, as plaintiff was informed by the
Tbe questions presented by these error proceedings are, first, was tbe railroad company guilty of negligence, and second, was tbe defendant in error guilty of contributory negligence? It has been repeatedly held by this court that issues as to negligence and contributory negligence, where tbe evidence is so conflicting that from it different minds might draw different conclusions, must be determined by tbe jury. (Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb., 660; Omaha & R. V. R. Co. v. Morgan, 40 Neb., 604.) As tbe jury found in favor of tbe defendant in error, we shall assume as established such pleaded facts as tbe evidence-upon bis behalf justified tbe jury in finding, without undertaking to set out tbe proofs submitted in rebuttal.
Tbe defendant in error, when be made bis shipment at Scio, received from tbe railroad company a contract which entitled him to free transportation in the caboose of the train whereby said shipment was made, that be
It is complained by the railroad company in connection with the above propositions that though the court instructed the jury that to excuse such an act and free the plaintiff from the charge of contributory negligence there must be a coercion of circumstances which did not leave the passenger in the free and untrammeled possession of his faculties, and that the mere fact that unless he so boarded the train it would proceed without him was not sufficient to justify making the attempt, nevertheless the jury found against the railroad company, whereby it is evident that this instruction was disregarded. It has already been noted that the defendant in error was ignorant of the danger attendant upon an attempt by an unskilled person to board a freight car moving at the rate at which the one he attempted to board was moving and that this danger was one well known to railroad men. Moreover, the evidence, accepted by the jury as true, established the fact that notwithstanding these conditions the conductor directed the defendant in error to make the hazardous experiment, which he did make with very disastrous results to himself. There was evidence on behalf of plaintiff in error that the conductor did not direct the defendant in error to attempt to climb upon the freight car, but that it was a brakeman who informed the defendant in error that
Affirmed.