66 Neb. 638 | Neb. | 1902
Lead Opinion
This case was submitted and decided at a former term of the court, and an opinion filed on the 19th day of June, 1901. See 62 Nebr., 358. Afterwards a motion for a rehearing was granted, and the cause has been exhaustively reargued by the counsel for both parties and resubmitted for our consideration. The vital question in the ease ls one of extreme importance, not only to the parties thereto and to railroad companies, but to all persons making use of mechanical devices in the conduct of their business, and to their servants and employees and to the public generally. We do not conceive that, in the absence of legislation, any different rule of liability or responsibility is applicable to railroad companies than to other persons under substantially similar circumstances. The plaintiff in error
Judicial tribunals can not supervise or correct the mistakes of either. They can not so do, if for no other reason, because their decision, in a particular instance, decides nothing but the matter then being especially litigated. The decision furnishes no rule for the future guidance of the parties. The very act or omission which in one case has served as the occasion of punishment or exculpation may in the very next case, tried upon the same or following day, have an exactly opposite consequence. Such results would travesty the administration of justice, and so we think that the courts have nearly universally held that errors of judgment, not occasioned by willful ignorance or a reckless inattention to duty, are not evidence of negligence or a ground of civil liability.
As having a direct application to cases like the one at bar we quote the following authorities:
And in Reese v. Hershey, 163 Pa. St., 253, 257: “The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover, the use of a dangerous machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger but negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business.”
And in Harley v. Buffalo Car Mfg. Co., 142 N. Y., 31, 34: “The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable
And in Louisville & N. R. Co. v. Hall, 91 Ala., 112, 121, 24 Am. St. Rep., 863, 870, it is said: “We have said, many times, that railroads are not required to adopt every appliance which some roads, even a majority of the well-regulated, have incorporated into their system of management. Something must be accorded to a diversity of judgment. If many well-regulated roads abstain from adopting a particular appliance which other roads, even a majority, consider wise precautions and adopt, such abstention can not be pronounced, per se, recklessness, or negligence.”
And in McGinnis v. Canada Southern Bridge Co., 49 Mich., 466, 472: “Railroading is at least a business with
And to the same effect is Southern P. R. Co. v. Seley, 152 U. S., 145, reversing same in 6 Utah, 319, cited in our former opinion, and, to a like effect, Lake S. & M. S. R. Co. v. McCormick, 74 Ind., 440.
We think that the foregoing decisions establish beyond controversy, both upon reason and authority, that an employer is not liable in damages for the consequences of mere error in judgment in furnishing structures, ma
We recommend that the former judgment of this court be vacated and set aside and the judgment of the district court be
Affirmed.
20 Am. St Rep., 944.
Concurrence Opinion
concurring.
I fully agree with all that is said in the foregoing opinion, and think that the case should be affirmed for the reasons above given. ' I wish to add, however, that I think the evidence shows that the plaintiff in error was guilty of contributory negligence and that on that account alone the law can afford him no relief.
On account of the importance of the question involved, and the difference of opinion of the commissioners, argument was had before the court. There can be no doubt that, if the company acted in good faith, and with an honest desire to adopt the methods best calculated to promote the safety of its employees generally, as well as of the traveling public, it can not be charged with negligence, even though we should believe from the evidence before us that the purposes the company had in view would have been better served by blocking the rails, as plaintiff contends. There is still less reason to impute negligence to the company if the evidence shows that in the present condition of experience, it is impossible to say which method, upon the whole, affords the best guaranty of immunity from danger.
It was contended upon the argument that the claim that the unblocked guard-rail is less dangerous than the blocked rail was an afterthought, and not urged in good
Of course, the question of good faith on the part of the company in determining the advisability of blocking the guard-rails is a question of fact, and as such, when in dispute, is to be determined by the jury. If there was no reasonable ground for doubt as to the better course to pursue, the company .can not defend against a charge of negligence by urging that it was in doubt, and acted on its best judgment. But if the best course to pursue, in the interest of the safety of the employees and of the traveling public alike, was an open question and difficult to determine, the company can not be charged with negligence in having adopted the one course rather than the other.
Upon examination of the evidence, it appears that there is no dispute that the safety of the employees of the company and the safety of the traveling public are both involved in the determination of the question of the advis-abilty of blocking the guard-rails. So far as safety to the employees is concerned, there is a large mass of testimony from which it can not be determined with any degree of certainty which is the better practice; and when we further consider that there is much apparently reliable evidence tending to sIioav that danger to the traveling public is increased by the practice of blocking the rails, and no evidence is offered to show that any system of blocking can be adopted without increasing that danger, we think there is an entire failure of proof that the company acted in bad faith in adopting the unblocked system.
We have therefore adopted the majority opinion of the commission, as prepared by Mr. Commissioner Ames, and the judgment of the district court is
Affirmed.
By the Court': For reasons stated in the foregoing opinion, it is ordered that the former judgment of this court be vacated and set aside and the judgment of the district court be affirmed.
The court can judicially know of the existence of a public corporation — -railroad company — without a pleading. Baltimore & O. R. Co. v. Sherman’s Adm’x, 30 Gratt. [Va.], 602.
The assumption of risk by a servant; his knowledge of the danger; his continuation in service with such knowledge; his continuance under promise .of master to remove danger. See notes on pages 736 and 810, 9 Am. St. Kep. — W. IT. B.
A contrary rule, however, prevails in Indiana.