107 Neb. 36 | Neb. | 1921
This is an action for damages against the director general of railroads, brought by Nellie E. 'Sheean, administratrix of the estate of her deceased husband, who, at the time of the accident resulting in his death, was a locomotive engineer in the employ of defendant. The action is brought under the federal employers’ liability act (U. S. Comp. St. 1918, secs. 8657-8665), and charges the accident to have occurred while both the defendant and the deceased were engaged in the traffic of interstate commerce. The particular provision of the federal employers’ liability act involved in the present suit is that contained in section 1 of the act (U. S. Comp. St. 1918, sec. 8657), which provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages to any person suffering injury while he is
The part of plaintiff’s petition relied upon to maintain her action under said provision is, in substance, as follows :
That at said time (June 7, 19191) the defendant unlawfully and negligently kept and maintained the said railroad track, including the roadbed, rails, ties, spikes, and all parts thereof, a short distance to the west .of the station of Stroud, in the state of Wyoming, in a loose, dangerous and negligent condition, and in a condition where it was dangerous for said Sheean, or any other employee of defendant, to operate a locomotive engine oyer said track; and that, on said day and. while so employed, said Sheean, while operating a locomotive, for and in behalf of defendant and aiding and assisting in carrying on said business of interstate commerce by him as an employee, ran said locomotive over said track, and by reason of the aforesaid unlawful, negligent and unsafe condition of said track, roadbed, ties, rails, and spikes, the said locomotive was derailed and overturned, and said Sheean was crushed and scalded in all parts of his body, whereof he suffered great torture and anguish and as the result thereof died on the 12th of June, 1919.
• The defendant’s answer admits that, at the time and place alleged in plaintiff’s petition, the deceased received injuries by the derailment of the engine which he was operating, while in the employ of the defendant and while both were engaged in interstate commerce, and from which injuries the deceased died on the date alleged, but denies each and every other allegation in plaintiff’s petition.
The reply of the plaintiff is a general denial.
The íavo questions in dispute under the issues thus raised are, therefore : (1) Did the defendant negligently maintain its track or roadbed at the time and place alleged in a condition substantially as charged in plaintiff’s petition? and (2), in any event, did the deceased assume the risk in operating his engine over the same?
The plaintiff introduced the testimony of a number of witnesses tending to support the allegations of her petition in respect to the condition of defendant’s track and roadbed, and, on the other hand, defendant introduced the testimony of a number of witnesses tending to show that defendant’s track and roadbed at the time and place in question wag in a sound and normal condition, that, defendant Avas free from negligence, and that the accident was one of those happening from an unknoAvn cause, for which the defendant is not liable, and further that the •deceased assumed the risk of Avhatever danger there was incurred, and that for either one or both reasons the defendant Avas entitled to a directed verdict in its favor. The court denied the request for a directed verdict and submitted the issues to the jury under certain instructions. We think there Avas no error in submitting the ■case to the jury. The train (passenger) which met with the accident was traveling westward at the rate of about 35 or 40 miles an hour, when the undisputed evidence
The plaintiff called four witnesses to testify as to the condition of the track and roadbed at the point in question, and to circumstances surrounding the accident— one a lawyer and passenger, another in the railway mail service, upon the wrecked train, another a contractor, but in what business is not disclosed, and the fourth a locomotive engineer in the employ of the defendant company, and brother-in-law of deceased. The last two were not present at the happening of the accident, but arrived soon thereafter. All of these witnesses testified that they had examined the track and roadbed immediately after and in the immediate vicinity of the accident, and east of where the track had been torn up by the wreck, and testified generally that some of the ties were rotten, some split, some spikes gone, others loose, one of four bolts to a certain fish plate missing, another loose, earth ballast only composed the roadbed, some ties were “hollow,” that is, holes underneath them so that the track and ties were low in spots on both sides, and that there was a slight curve in the track at point of accident. In addition to the foregoing, the locomotive engineer, witness, testified that the surface of the rails was not level, that it was low
On the other hand, eight witnesses called by the defendant, testified to the condition of the track at the point in question, all of them in the employ of the defendant— one roadmaster and trackman for 44 years, another division superintendent of 39 years experience, another road-master over that part of the road where the wreck occurred, another a civil engineer, and the others as follows: A machinist, boiler foreman, roundhouse foreman, and baggageman on the wrecked train. The majority, if not all of these witnesses, testified that they had examined the track and roadbed in the vicinity of the accident, particularly east of that part torn up by the wreck, with considerable care, and state generally that there is no curve in the track at the point of accident, but, on the contrary, it is perfectly straight, and is so for more than 2,000 feet either way from said point; that there were no rotten ties or displaced spikes or bolts; that the roadbed was dry, sound, and in good usable order as other parts of the road. In addition to the above testimony, two of the witnesses, the division superintendent and the assistant civil engineer, testified that they tested the level of said track with a spirit level and guaged the width thereof for a distance of eight rails east of the point of accident; that the track was in perfect guage except one spot where it was one-half inch wide, which was insignificant in prac
The defendant urgently contends that upon the whole evidence on this branch of the case, the substance of which is given above, the plaintiff has failed to establish any negligence on the part of defendant, or that the negligence attempted to be established, was the cause of the accident; and, unable itself to account for the derailment or to offer any explanation of how the accident occurred, it insists that it is merely one of such accidents as are constantly occurring in railroad history, notwithstanding the exercise of great care.
It may be admitted that the defendant’s evidence tends strongly to support the reasonably sound condition of its
The plaintiff was not bound to establish negligence to an absolute .certainty; it is sufficient if the evidence furnishes a reasonable basis for satisfying the jury that the defendant was guilty of negligence as alleged. Neither is it necessary, nor always possible, to establish with absolute certainty the connection of , cause and effect between the negligent act or condition and the accident and injury that folloAvs. It is likewise sufficient in this particular if the evidence furnishes a reasonable basis for satisfying the minds of the jury that the negligent condition complained of was the proximate and operating cause of-the accident. Orth v. St. Paul, M. & M. R. Co., 47 Minn. 384; Olson v. Great Northern R. Co., 68 Minn. 155. And Avhen it is admitted by the defendant that the north rail was low in spots from one-fourth to seven-eighths of an inch, and plaintiff’s witnesses testify it was low about two inches, and that the effect of such condition would be to cause the engine to tilt doAvn on "the north side and up on the south side, and the south drive. Avheels were elevated, by some means, so that the flanges rode the top or ball of the rail for a distance of 26 feet, then dropped off entirely and the disaster followed, it is not an unwarranted deduction to account for the accident in the way suggested, particularly so when no other explanation is afforded. The condition of defendant’s road, the alleged negligence of defendant in respect thereto, and the cause of the accident in connection there
The defendant further complains, however, that the court erred in its instruction to the jury in this respect. The court’s instruction upon this branch of the case is as follows:
“Under the act of congress under which this suit is being prosecuted, it was the duty of the defendant to exercise due care and caution to have the railroad at and about the place where the engine operated by Sheean was derailed, in a condition that was reasonably safe. And you are to determine from all of the evidence whether that was the condition of this railroad. As to whether this track was maintained in proper condition, or negligently maintained and used, is a question for you to determine under the entire evidence in the case. Negligence is the doing of something which a railroad corporation of ordinary prudence would not do under the conditions, or the failure to do that which a railway corporation of ordinary prudence would do under the circumstances. And it is for you to determine from all the evidence whether this railroad was kept and maintained negligently or not. The plaintiff is required to prove by a preponderance of the evidence that it was negligently maintained. This you will determine upon all the evidence. You will determine it from all the facts and circumstances in the case. You are not confined to the statements of witnesses alone, but you are at liberty to consider what occurred (italics ours), and all the facts and circumstances that will aid you in arriving at the truth, and which will enable you to say whether the injuries sustained by Sheean were due to the negligence of the defendant in the matter of the roadbed in question.”
That part of the instruction in italics forms the ground of defendant’s complaint. The defendant claims that this
We are strongly inclined to the opinion that the error complained of is sufficiently grave of itself to require a reversal of the case; but, inasmuch as there must be a new trial ordered for another reason, we pass the point at this time without further consideration, except to suggest that upon a retrial that part of the court’s instruction referred to be eliminated.
The next and last assignments of error are that the verdict as returned by the jury, and on which judgment was entered by the court, is greatly excessive, and for' the failure of the court to instruct the jury that, if it found for the plaintiff, it should reduce the aggregate of the anticipated earnings of decedent, as shown by the evidence, to their present worth, and as to that element of damages include in the verdict that sum only. The defendant tendered an instruction of that import, which was ■refused by the court, and the court gave no other instruction on the subject. We think the defendant is right on both propositions, and, considering them together, we must hold that the court erred in refusing to instruct as suggested, and because of which a new trial must be granted.
•This point in the present case is identical with a corresponding point in the case of Sweat v. Hines, ante, p. 1,
We do not assume to prescribe definitely just how the present worth' in such cases shall be ascertained. That depends somewhat upon at what rate of interest the proceeds should be computed, and possibly whether or'not the interest shall be computed on the system of annual rests. The formula, however, suggested in the Sweat case is one that has long been in vogue in this state, and we are of the belief that a result thus obtained cannot be far from the just amount to be awarded. In the present case the evidence shows that the earnings of decedent, at the apex of war time wages, and without any deduction for loss of time, was $2,604 a year, less personal expenses of $834; leaving a net balance for distribution to dependents of $1,770 a year. For 16 years, the life expectancy of decedent, the total amount of earnings available to dependents would be $28,320. Applying the formula suggested in the Sweat case, the present worth of the above sum would be a fraction less than $14,449, or computed on the basis of 15 years, the life expectancy of the plaintiff, the present worth would be a fraction less than
We have not overlooked the fact that plaintiff also injected into this case a claim for damages for loss of a few simple domestic services, which it is claimed decedent was accustomed to perform in and about the home, such as mowing the lawn, or watering the trees occasionally, but as to the money value of which no evidence was offered. As we said in the Sweat case, while these little domestic services might be invaluable estimated from a standpoint of sentiment and personal association, measured by a money value, as they must be, they cannot be more than inconsiderable. So that this item could not materially change the result above stated.
We regret that a new trial is necessary, but we see no way to avoid it. The judgment of the lower court is therefore reversed and a new trial granted.
Reversed.