40 Neb. 840 | Neb. | 1894
This action was brought by plaintiff in error for injuries sustained by Delos F. Slayton. After all the evidence had
The defendant occupied and owned a section house within the corporate limits of the village of Ainsworth. This section house was kept, used, and occupied by the defendant’s section foreman for the purposes of lodging and boarding section hands in the employ of defendant. It was located on defendant’s right of way and about forty feet from the railroad track. The section house was occupied by defendant’s foreman until some time in the latter part of March, 1890, at which time the foreman obtained from the defendant leave of absence for thirty days, and, having left his goods stored in the said house, he went with his wife and children on a visit to Blair, in this state, and while so absent he engaged work at Blair, and on the 18th of April, 1890, returning to Ainsworth without his family, he packed his goods in the section house, put them on board of the cars, and shipped them to Blair, leaving the section house locked and its windows fastened, neither of them at the time being broken. The family of the section foreman, at the time he occupied the house in question, consisted of himself, his wife, and one or two small children. When he left the section house and removed his household goods therefrom there was left in a closet an open tin box containing about twenty-five or thirty torpedoes, one of which caused-the injury to plaintiff in error. On the 26th of April, 1890, the section house still being vacant, Ollie Luff borough, aged twelve years, Janie Slay-ton, aged ten years, and Earnest Luffborough, aged seven
The effect of an instruction, given as this was, is discussed in section 2267 of Thompson on Trials: “ The demurrer to evidence used in the ancient common law practice seems to have passed, for the most part, out of use in -American
The proofs in this case in no way tended to establish negligence on the part of the railroad company. The section house was on its right of way and subject to its control. It was occupied by one of its employes and his family as their home. It was not used for the operation of the railroad of defendant. The torpedoes were by the section foreman brought to his home and there deposited. Whatever of danger might reasonably be anticipated from this act must result to his own children or wife, and it could not be anticipated as likely to happen to others burglariously entering his home. When the section foreman left this house he locked the doors and left the windows securely fastened. It is insisted, however, that there was a hole in the window which admitted of the insertion of the hand of Earnest, whereby he was enabled to undo the inside fastenings of the lower sash, and that the existence of this opening was evidence of negligence. While the window was unfastened by a boy of seven years of age, the sash was raised and entry first made by girls of the age of ten and twelve respectively. There were taken by one of thtee girls a hammer and lantern and several tor
Affirmed.