44 Neb. 448 | Neb. | 1895
On the 2d day of January, 1890, the defendant in error Mrs. Hedge, at the city of Fairfield, purchased of the plaintiff in error, the St. Joseph & Grand Island Railroad Company (hereafter called the “railroad company”) a ticket good from the station above named to the city of Hastings and took passage on a west-bound freight train which was also accustomed to carry passengers between said stations. When the train in question had reached a point about one mile east from Hastings a stop was made for the purpose of taking on a car loaded with brick then standing on a side track constructed for the accommodation of the proprietor of the brick yards there located. In order to take on the car mentioned, the train was cut so as to leave the caboose and one or two freight cars east of the switch connecting the side track with the main line. The side track is constructed on a grade which inclines toward the main line, so that cars left thereon unsecured will by force of gravity alone run down to and upon the main track. To prevent this a safety switch had been constructed in connection with the side track so arranged that when left open it served to disconnect the siding from the main' track, and cars coming down the grade from the brick yards would accordingly be run onto what is known as a spur instead of the main track. But when closed, said switch served to connect the rails of the siding, thus making a continuous track from the brick yard to the main line. In-order to take on the car of brick it was necessary for the men in charge of the train to move a partially loaded car standing in front thereof. This was accomplished by pulling the two ears mentioned onto the main track and, after coupling the loaded car into the train, pushing the other back onto the siding and blocking the wheels thereof with billets of wood in order to keep it in position. It seems that the point where the last named ear was left was too far
Q,. What first attracted your attention to this car of brick?
A. The first was from hearing remarks made in the caboose by different parties relative to this car.
Q,. What was. said ?
Objection. Overruled. Exception.
A. The first is “ That is a dangerous switch.”
Q,. What else,sif you remember?
A. That the car was going to get away from the old man; that he could not handle it. * * *
*455 Q,. Wliat else do you remember being said there about ■this matter?
A. That there was danger, and we had better be getting . out of there. * * * I heard that first from the lookout.
„Q. Did they [the men in the lookout] get down when they made the remark about getting out?
A. Yes, sir.
Q,. Where did they go, if any place?
A. They went out.
Q,. In what manner?
A. Hurriedly.
Q,. What remarks did you hear from others as they went out?
Objected to, as incompetent, irrelevant, and immaterial. Overruled. Exception.
A. I heard the remark outside, “ Jump for your lives.” * * ,
Q,. Whom was that remark addressed to, if you, as you ¡understood it?
A. To ourselves.
Q. What were the parties in the lookout doing when 'that remark was made ?
They were getting out through the narrow passage-A. way.
What did they do when they reached the platform? Q.
I suppose they jumped, but did not see them. A.
Was the car in motion at that time? Q.
Yes, sir. A.
Where did you find those parties when you reached ¡the platform? Q.
A. On the ground.
Q,. In what positions?
A. They were lying down. I cannot' say just what position.
Q. They were not upright?
*456 A. No, sir; they were not standing up.
Q,. Who was with you at the time?
A. Mrs. Dins more.
Q. What did she do ?
A. She jumped out from the train just ahead of me» * * * w
Q,. What happened to you when you jumped ?
A. I do not know.
Q. What is the first thing you can recollect ?
A. The first thing I can remember is they were gathering around me and I was trying to get up.
The following is a quotation from the testimony of Mrs» Dinsmore:
Q. What was the condition of the caboose in that respect at the time of the speaking of the remark? [Referring to the character of the switch.]
A. It was standing still.
Q,. What occurred afterward?
A. The engine started up so quickly that I nearly fell on the stove. I took my seat, and just as I took my seat-some one in the look-out said (Objection. Overruled. Exception.) : “That car will get away from that old man. We had better be getting out of here. Every one run,and jump quick.” * * * There were some in the lookout^ I know, that ran and jumped.
Q. Were they men or women ?
A. They were men. * * *■
Q,. What occurred when you reached the platform on> the end of the car ?
A. I turned before I got out on the platform to see if Mrs. Hedge was coming, and when I got to the platform? I jumped. I did not see Mrs. Hedge again until I found her on the ground.
Q. What, if anything, did you hear in the Way of directions as to what to do ?
A. I was told to hurry up quick.
*457 Q. At the time this was said what were the other passengers doing ?
A. They were getting out as fast as they could.
And Mr. Morris, who was at the time employed at the brick yards, testified that the direction “jump for your lives ” was given by a brakeman at the rear end of the caboose.
The injury, which is the foundation of this action, was, as will be perceived from the evidence above quoted, received by Mrs. Hedge in jumping from the caboose, and the questions presented all relate to the liability of the railroad company therefor.
We will first notice the assignment relating to the agreement between the railroad company and Hurley, the proprietor of the brick yards, under which the side track and switches were constructed. The offer was to prove that said tracks were graded by Mr. Hurley, the company merely furnishing the rails and ties; that they were constructed for the exclusive use and accommodation of the former, that cars were delivered to him on said track whenever demanded and were, while they remained thereon, under his exclusive control. The evidence so offered was excluded on the objection of the plaintiff below, and the ruling thereon is one of the grounds assigned in the motion for a new trial as well as in the petition in error. The contention of the railroad company with respect to that question is best illustrated by a quotation from its brief, viz.: “If Hurley’s men had not meddled with the car at the inopportune time, the accident would not have happened. * * * The car would have stood there securely blocked with wood under its wheels till doomsday and injured no one. * * * The defective brake cannot in law be considered the proximate cause of the accident. The rule is that if subsequent to the original wrongful or negligent act a new cause ‘ has intervened sufficient of itself to stand as the cause of the misfortune the former act or cause must be considered too remote.’ ”
We will next examine the assignment relating to the sufficiency of the evidence. The only additional testimony which calls for notice in this connection is that of Mr. Swearingen, the conductor, who was at the time of the injury evidently near the rear end of the caboose, and substantially corroborates the other witnesses respecting the hurried exit of the passengers. He also heard one of them, Mr. Furrer, addressing the others, say to get off the car. Said witness testified, however, that the caboose had cleared the switch at the time Mrs. Hedge jumped therefrom, and that there then existed no danger of a collision with the freight car. From the facts thus stated it is argued that in jumping from the moving train the plaintiff below was guilty of contributory negligence within contemplation of the statute, and which amounts to a defense in this action. But to that proposition we cannot give our
Exception was taken to the admission of evidence by the plaintiff below as to the condition of the broken rod of the runaway freight car and which tends strongly to prove that said rod was broken and useless for the purpose of controlling the car. The ground of the objection is that said evidence is immaterial under the issues. The allegation of the petition is: “The braking apparatus of said car at the time and before it was placed on said side track Avas in bad repair, the brake chain thereon broken, and said brake was useless for the purpose of stopping said car or controlling its movements.” True, the broken rod is not specifically mentioned in the pleadings, but the allegation that the braking apparatus was in bad repair and useless for
Exception is also taken to the admission of testimony tending to prove that it was the duty of the trainmen to open the safety switch after pushing the freight oar onto the side track, but a reference to the record shows that the only objection urged to the questions mentioned is that they are leading and suggestive. A party will not, as a general tiling, be permitted to lead his own witnesses, but the rule in that regard is especially applicable to the trial court, and the subject is so far a matter within the discretion of the court as to present no ground for reversal in the absence of a clear abuse of discretion. (St. Paul Fire & Marine Ins. Co. v. Gotthelf, 35 Neb., 351.)
Lastly, it is argued that the damage, $3,000, is excessive, and that the verdict should have been set aside on that ground. Mrs. Hedge, according to the undisputed evidence, was, as the result of the injury, confined to her bed for three weeks, and was unable to walk without the assistance of crutches for nearly, if not quite, five months. For seventy hours after the injury she was unable to sleep on account of pain, and was, at the time of the trial, in March, 1893, unable to use or bend her left ankle without considerable pain. Dr. Prentiss, an experienced surgeon, who made a careful examination of her limb on the day of the accident or the day following, testifies to a severe' sprain of the ligaments, and that from the crepitus or grating sound observed when moving and pressing upon the ankle there was an evident fracture of the astragalus or ankle bone, and that in his opinion her present lameness will be
Affirmed.