97 Neb. 360 | Neb. | 1914
Under the federal employers’ liability act (35 U. S. St. at Large, pt. 1, ch. 149, sec. 1), the plaintiff, as administratrix of the estate of Harry E. Richelieu, deceased, sued the defendant, the Union Pacific Railroad Company, in the district court for Douglas county to recover damages for the death of her brother, alleged to have been caused by the negligence of the company. There was a verdict in her favor of $12,000, and, on an order of the court in overruling the motion for a new trial, the plaintiff remitted from $12,000 down to $8,000, and a judgment was rendered for the latter sum against the defendant, and the defendant appeals.
The deceased was one of a crew of six men operating local freight train No. 57, west-bound between Council Bluffs, Iowa, and Columbus, Nebraska. On this run it was customary for the members of the crew, while at Waterloo, to consider what work was to be done at Valley, and it was the intention of the crew, while on this particular run, to transfer a certain flat car occupying a position next to the engine to the rear end of the Wain, immediately in front of the caboose, and to place a private car, standing at the depot east of Valley, onto the extreme end of the train. As the train passed the depot at Valley on the west-bound main line and entered the station from the east, Justison, the rear brakeman, got out on the platform, of the caboose or way car, and uncoupled it from the train,
It is contended that the frog over which Richelieu was compelled to go to perform the duties of uncoupling the cars was not properly blocked, and that the defendant would have been free from harm but for the defective condition of the frog. There is some evidence tending to show that the frog had previously been blocked, but that it had worn out. We are confronted with the question as to whether the defendant was permitted to submit to the jury its theory of the case. Unless the frog was in such condition when the deceased stepped out from between
The bill of exceptions shows that, to permit argument of counsel, the jury were excused until 9 :30 a. m. Monday,. May 29,1911, at which time the following proceedings were-had: “The court: The motion to direct a verdict is overruled. To which ruling the defendant excepts. The court r The court having intimated to counsel during the trial of the case, or after the plaintiff had introduced her proof,, that it was apparent to the court that the only question that would be submitted to the jury would be the question of the negligent order of the conductor or the man in charge of the train, and the court being now of the opinion that the court should submit the defective condition of the track, together with the orders made by the conductor or the man in charge of the train, and the court having surprised counsel for the defendant, the court now offers to open up the case and give the defendant two days to produce any evidence defendant may have as to whether or not the unblocked switch was defective and dangerous,, considering the orders that were made by the conductor or man in charge of the train, and the character and nature-of the work that was required to be done by the deceased.”' To the foregoing offer there was a response by Mr. Sheean. The defendant claimed surprise because at the conclusion of plaintiff’s case, and after the motion to direct a verdict on the part of the defendant was made, the court permitted-the plaintiff to open- up its case for the purpose of amending its petition to allege a negligent .order, and, if they deem fit, introduce testimony showing negligence in the giving of an order of that character, and ruled that there was no other issue to submit to the jury. The defendant was then prepared with witnesses coming from Denver and other points to maintain the proposition that there was no question of negligence to go to the jury as to the condition of the flog in question, and “by reason of the intimation made by the court along the lines above suggested this defendant introduced no testimony along that line and permitted its witnesses to return home; that the defend
Section 1, ch. 39, laws 1911, provides the grounds upon which a continuance shall be granted in the district court: (1) The motion shall set out the grounds on which the application is made. (2) It shall be supported by the affidavit or affidavits of persons competent to testify -as witnesses. (3) The adverse party shall have the right to file counter-affidavits. (4) Upon obtaining leave of the court either party may introduce oral evidence. (5) There shall be no reversal by the supreme court on ac
Was the plaintiff dependent upon the deceased? She was 34 years old at the time of the accident, and was the owner of the old home in which the family had lived. While she got $1,000 in money from her father’s estate, she expended it in fixing up this place. She had a total of about $5,000 in money in addition to the homestead. She rented the homestead for $30 a month, but out of this there were some expenses to pay, including taxes and water rent.- At the time of her brother’s death she was working for Dr. Lemere, for whom she began to work in 1909. She at first earned $5 a week, but was getting $9 a week when the brother died. She had worked 20 months in the doctor’s office. The brother lived with her in the old house, giving
That her brother gave her substantial assistance is apparent from this testimony. She had a home and also about $5,000 in money, and she had a position which paid her $9 a week. She was dependent upon the assistance of her brother, although not without means. She could recover her pecuniary loss only. Michigan C. R. Co. v. Vreeland, 227 U. S. 59; American R. Co. of Porto Rico v. Didricksen, 227 U. S. 145; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173. In Gulf, G. & S. F. R. Co. v. McGinnis, it was said in the syllabus: “The employers’ liability act of 1908, as heretofore construed by this court, is intended only to compensate the surviving relatives of a deceased employee for actual pecuniary loss sustained by his death.” If we apply this doctrine to the instant case, it must be seen that the plaintiff has a meritorious case. The following cases seem to support the view we have expressed: Goff v. Supreme Lodge Royal Achates, 90 Neb. 578; Illinois C. R. Co. v. Doherty’s Adm’r, 153 Ky. 363, 155 S. W.
Instruction No. 1, requested by tbe defendant, reads: “You are instructed'that, if you find from tbe evidence the plaintiff, Charlotte H. Richelieu, was able to make ber own living at tbe time of tbe death of tbe deceased, Harry E. Richelieu, she cannot recover in this case.” It is contended by the defendant that it was error to refuse this instruction. We a?e unable to take that view of tbe matter. Whether she was dependent upon tbe brother depends upon tbe aid that be gave ber. Tbe evidence shows-that he rendered her aid almost continuously.
The defendant should have been permitted to present to tbe jury its theory of tbe case. This was in effect denied by tbe refusal to grant tbe continuance. For tbe reasons stated, tbe judgment of tbe district court is reversed.
Reversed and remanded.