85 Neb. 808 | Neb. | 1910
In June, 1906, the plaintiff, who was a track-laborer or section-hand in the employ of the defendant railway company, was engaged in the work of substituting new rails for old upon the west side of the main-line track of the railway extending between Omaha and Gibson. The work was under the general direction of one Ibson, who was road-master for that division, under whom were three section foremen, Olson, who is one of the defendants, Peters and Shimonek. The gangs ordinarily working under each foreman were assembled and worked together under the immediate direction of the three foremen and Ibson. Traffic had been stopped upon that section of track for the purpose of allowing the rails to be changed. The men began work at the Omaha end, and proceeded to draw the spikes upon the inside of the west rail going south until they readied Gibson, when they walked back toward the point of beginning for the purpose of moving the rails. Immediately before the accident Olson, with a helper, had cut the bolts from the angle-bars holding the north end of the first rail to be changed. The rail, ap
The defendants first contend “that there is no evidence that by reason of intense heat the rail had expanded, and had become tightly wedged.” It seems to us that one cannot read the testimony of Ibson and Olson and reach the conclusion that the rail was not expanded. Olson says that the rail was tight on account of the trains running in one direction and on account of the heat, and that he struck the end rail two or three times after the bolts were cut with a big iron sledge-hammer, but did
It is next contended that the accident “was one of those unusual and unexpected events which occasionally take place and which cannot be foreseen.” As to this point, we think the testimony of the defendants’ witnesses clearly shows that, when a rail which is expanded until it is tightly compressed at the end is released, it is liable to spring from a few inches to as much as four or five feet, and that the inside of the trade in such case is a most dangerous position. Olson testifies he has seen rails spring five or six inches or a foot at the' ouside, Avhile Ibson frankly testifies that no one can tell where they will go. „
The next point made is that the risk of a rail springing or jumping, as this one did, was one of the risks of the employment in Avhich Rath jen AAras engaged; that he had four years’ experience in work of this character, and that he kneAv that the rail was apt to spring Avhen being taken up — citing in this connection the case of Omaha Bottling Co. v. Theiler, 59 Neb. 257. But Rathjen testifies that he did not knoAv the rail Avas wedged; that he kneAv it was caught, but did not knoAv but that it was caught by being imbedded in the ties, or by a spike; that he had seen rails jump before, but only a few inches. There is no evidence to contradict him on this point, and, if the jury believed him, the doctrine of the Omaha Bottling Company case, quoted by defendants, that “a servant Avho, from the length or character of previous service or experience, may be presumed to knoAv the ordinary hazards attending the proper conduct of a certain business, is not entitled, as an absolute right, to the same or similar notice of dangers incident to the employment as if he Avere ignorant of, or inexperienced in, the particular work,” is not applicable. The evidence clearly sIioavs that Rathjen was
It is next objected that the court erred in permitting the plaintiff and Fronk to testify as to the proper way to take out a rail wedged as this rail was. These witnesses testify that the proper way was to cut the bolts, knock the angle-bar out, and then knock the end rail out with a maul. This is exactly the method which Olson pursued. The defendants certainly could not be prejudicied by testimony showing that the plan which it tried to follow was the proper one. Further than this, the defendants met this issue by testimony to the effect that, when the rail was tightly wedged, the usual method was to force in the rail at the next joint, thereby relieving the pressure. It seems to us this matter is of little importance under the issues.
It is next contended that the court erred in permitting the witness Fronk to answer certain questions for the purpose of contradicting the evidence of the section foreman, Peters. Peters had testified that the usual method of taking the rails up was to release the angle-bars at the joint, go back about three or four feet, and push the rail out on the side where the spikes Avere draAvn; that that was the method alAvays used; that it had never occurred to him that the danger was any greater if the rail was wedged, than it Avouhl be if not Avedged, and that it never occurred in his experience that there Avould be danger of its springing when it was released. On cross-examination he was asked whether, Avhen he was removing a rail at a point near Gibson directly after the accident, he found a rail Avedged at the end, and took a spike maul and hammered it until he got it loose, and if he did not then say in the presence of Fronk, “If Olson had broken that joint in that Avay, the old man would not have got hurt.” He AA'as also asked with reference to meeting plaintiff in January, 19 0T, on the railroad track near River View park, and telling him that, “If T had been there and liad been removing that rail this accident never
It is also urged that the court erred in instructing the jury that, if they found in favor of the plaintiff, “You cannot find against one defendant and in favor of the other.” It is said that the only evidence as to a command given by Olson was that, of Rath jen himself; that Fronk did not know whether it was Ibson or Olson who spoke; and that if the command was given by Ibson, Olson should have been exonerated, even though the railway company was held liable. But the petition based the liability of the defendants upon the command of Olson, the instructions base the railway company’s liability alone upon the command by Olson, and the jury were specifically instructed that, if they found that some one other than Olson gave the order and command, then the plaintiff cannot recover. The plaintiff chose to base his right to recover upon Olson’s command. He staked his whole fortune upon this cast. Under such a theory, and under the issues presented, the instruction complained of is not erroneous, and was properly given. It could in nowise prejudice Olson that the railway company’s liability is only predicated upon the theory of respondeat superior.
The refusal of the court to submit certain special findings requested by Olson is assigned as error. We have uniformly held that the submission of any such findings is entirely within the discretion of the district court. We find no abuse of this discretion in the refusal to submit these questions.
The issues in the case are simple. If the jury believed
We find no reversible error in the record, and the judgment of the district court is
Affirmed.