87 Neb. 503 | Neb. | 1910
From a verdict and judgment in favor of the plaintiff, in an action for personal injuries, the defendant has appealed.
It appears that on the 13th day of December, 1907, the plaintiff shipped two car-loads of hogs over the defendant’s railroad from Verdón, Nebraska, to Kansas City, Missouri. As is customary in such cases, plaintiff was furnished with' transportation to enable him to accompany and care for his stock shipment. It may be stated at the outset that under his contract for transportation he was not entitled to the full measure of care and protection which the law would afford him had he been traveling on one of defendant’s regular passenger trains; but he was, while accompanying his stock on defendant’s freight train, entitled to receive the highest degree of care and protection from the defendant’s servants and agents consistent with the nature of the train on which he was riding, and its proper and careful operation.
The train left the village of Verdón at 8 o’clock in the eArening, and reached a point in the vicinity of the village of NodaAvay about 3 o’clock the next morning. Before reaching Nodaway the plaintiff had an attack of sudden illness, and sought for a closet in the way-car, and, finding none, he informed the conductor of his condition and his necessity, and was told that the train would reach Nodaway in about 15 minutes where it would stop long enough for him to get off. After the lapse of about 15 minutes the train whistled and came to a stop. The plain
Eor the folio Aving reasons, we are of opinion that this contention should not be upheld. The plaintiff was a passenger being transported on the defendant’s freight train, and as such was entitled to the highest degree of care and protection from defendant’s agents and servants consistent with the proper operation of its train and that
It is strenuously contended, however, that plaintiff was guilty of contributory negligence, and therefore the verdict and judgment in his favor cannot be sustained. Many cases are cited by counsel for defendant in support of this contention. Among them we find Chicago, B. & Q. R. Co. v. Martelle, 65 Neb. 540, and Chicago, B. & Q. R. Co. v. Mann, 78 Neb. 541, decided by this court. In the Martelle case the plaintiff jumped from a rapidly moving train, while in the Mann case the plaintiff, in attempting to board a freight train, under an agreement to do so at his own risk, fell into a properly constructed ash pit. It was therefore rightly held in both cases that there could be no recovery. We have examined the cases cited from other jurisdictions and are satisfied that they are all distinguishable from the case at bar. In this case it appears, Avithout dispute, that the plaintiff’s condition made it imperative for him to leave the train at the first opportu
Finally, it is contended that the district court erred in giving paragraphs 1 to 5 of his instructions to the jury, and in refusing to give instructions numbered 4, 5 and 6, tendered and requested by the defendant; Without discussing these several assignments separately, it is sufficient to say tliat we have carefully considered them, and are of opinion that the trial court did not err in giving and refusing instructions.
For the foregoing reasons, the judgment of the district court is
Affibmed.