107 Neb. 1 | Neb. | 1921
This is an action for damages against Walker D. Hines, as director general of railroads, brought by Anna Mabel Sweat, the administratrix of the estate of her deceased husband, who at the time of the accident, resulting in his death, was a freight conductor in the employ of the defendant. The action is brought under the federal employers’ liability act (U. S. Comp. St. 1918, secs. 8657-8665) and involves the alleged violation of the federal safety appliance act (U. S. Comp. St. 1918, secs. 8605-8650).
A trial of the case to a court and jury resulted in a verdict of $55,000. Upon motion by defendant for a new tidal the court required as- a condition precedent to the denial thereof a remittitur by plaintiff of $15,000 from the verdict, to which plaintiff agreed, and thereupon motion for new trial was overruled, and a judgment rendered for the plaintiff in the sum of $40,000' and costs. The defendant appeals.
The folloAving facts may be regarded as either admitted-in the record or established by the undisputed evidence: On the 27th of 'September, 1919, one -Sprague, in the employ of the defendant, was conducting a freight train from Lusk, in the state of Wyoming, to Ohadron, in the state of Nebraska. When this train reached a point near Dakota Junction, Nebraska, about 4 miles west of Ohadron, the draw-bar at the west end of a car loaded with coal-pulled out; the same was taken and thrown' to one side on the right of way, and the coal car, thenceforth known as the “bad-order” car, was coupled to the car next in the rear, the same being a flat car loaded with lumber, by-means of a chain. Apparently these two cars, the coal or “bad-order” car, and the lumber car to which it was at
In the meantime the decedent, as freight conductor, was engaged in conducting a south-bound freight train from Deadwood, South Dakota, destined to Chadron, Nebraska, and arrived at Smithwick, South Dakota, at 10:10 in the forenoon of the 28th, where he had an order to await the coming of the north-bound train, which arrived ten minutes later; so that at all the times herein mentioned the defendant and the two conductors of both the north and south-bound traiñs were engaged in the traffic of interstate commerce. As the north-bound train , pulled in on its track, the decedent and one of his brakemen stood by on the east side of the moving train, and as the “bad-order” car passed them their attention was attracted to the chain coupling between the coal and lumber cars, and they both immediately proceeded to walk northAvard the
In addition to these undisputed facts it must be conceded that the defendant had no lawful right to haul this “bad-order” car as it did, commingled as it was with other commercial cars. It was its duty under the statute, after discovering its defective condition, to take it at once to the nearest repair shop, which was Chadron, four miles east of Dakota Junction, where the defect occurred; but, in the event of hauling it at all, it was the duty of the defendant under the rule governing such a situation to have placed the “bad-order” car at the rear of the caboose. And, had the defendant done either, this accident could not have occurred. So that the defendant, in dealing with this “bad-order” car as it did, was guilty of negligence per se. And, further, if the two conductors were rightfully between the cars in pursuance of a duty to the defendant under their employment, they did not assume the risk of the danger incurred in so doing, even though they had full prior knowledge (which, of course, they had) of the defective coupling. So , that the liability or non-liability of the defendant in this case depends upon the one question: Was 'Conductor Sweat, the deceased, justified in going between the cars at the time and under the cir
The defendant urgently insists that be was not, that he had his own train to look after, and that he was not called upon nor had he any business to meddle with the operation of another man’s train, and that in so doing he was a pure volunteer, by reason of which no recovery can be had for the injury incurred.
The defendant itself promulgated a book of rules prescribing the- duties and obligations of its various employees- in the course of their employment, and distributed the same generally among its employees, one of which was furnished the deceased and was in his possession when Tie met his death, and from which the following was introduced in evidence:
“1152. In cases of accident to trains, storms, or other causes which may prevent the movement of trains, they will render all possible assistance in restoring normal conditions, whether coming under their particular duties or otherwise, and co-operate with other departments in the protection of the company’s property.”
A number of the employees of defendant in giving evidence in behalf of the plaintiff were permitted to testify, over the objection of defendant, that it was likewise the custom and practice of defendant’s employees generally, when present, to assist each other in every way possible, particularly in the way of promoting traffic in the movement of trains, irrespective of whether they were of the same crew, or in the same department of service. The defendant objected to the admission of such testimony without first requiring the plaintiff to show; if she could, that the defendant had knowledge of such custom. If the rule itself did not furnish a sufficient basis for a finding of defendant’s liability, providing the deceased was rightfully within its provisons, then it might have been held error for the court to have received evidence of a custom of employees without first showing that the defendant had
Donald 'Snyder, one of Conductor Sweat’s brakemen, was the only eye-witness to the accident, present at the trial and testifying. Snyder and Conductor Sweat were together on the east side of the track as the north-bound train containing the “bad-order” car pulled in on its track, and both, attracted by the chain coupling, walked lip to where the car had come to a stop, and Snyder, being present, saw all that transpired respecting the accident. He testified, in substance: Gale (the conductor hauling the “bad-order” car) stepped between the cars first, and ’Sweat immediately afterward; the draw-bar was out on the south end; the coal car was fastened to the lumber car with a chain; was not very tight; the pin-lifter had been broken off and was hanging down almost to the ground; saw Gale take hold of pin-lifter and give it a jerk, but didn’t budge it, then Sweat took hold on east side and tore it off and handed it to Gale, who threw it on the car; first thing I heard Gale say was about taking up a. link in the chain, he said he figured on taking up a link in the chain; from place Gale stood he could not pick- up pin-lifter; Sweat was the only man from where he was standing; I was going in there to help, but Sweat beat me to it;-at time of crash Sweat did not have his hands on anything, he was just turning his body a little; it was about one minute and a half from the time the 'train stopped until it backed up and the accident happened,
Owen E. Dugan, in the service of the railroad company for 25 years, part of the time as yardman, testified that there is danger in having a loose pin-lifter in a train; it is barely possible that the pin-lifter would have got under the wheels of the hind car and put it off the track.
One Koske, a brakeman on Conductor Gale’s train, being unable to attend the trial, an affidavit of the defendant’s counsel declaring what Koske would testify to, were he present in court, was admitted in evidence. It was admitted that Koske would testify that, upon the arrival of their train, he and Conductor Gale got off their way-car with the necessary tools for the purpose of packing a hot box on a car forward from the “bad-order” car; that he, Koske, was just opposite the opening between the cars where Gale and 'Sweat were killed when the engineer gave three short whistles of the engine, signifying the intention to back the train, which Koske distinctly heard; that neither Gale nor Sweat were between said cars for any purpose in connection with repairs to said coupling, but only happened to see each other on opposite sides and came into the opening for the sole purpose of holding friendly conversation; that the “bad-order” car was properly chained up and required no repairs; that Koske was in position to hear the conversation between Gale and 'Sweat as they stood between the cars, and that same did not pertain to any repairs to draw-bars or other parts of the train, and that Gale did not say to Koske that they would take up a link in the chain coupling, or make any other remark to indicate intentions to make any repairs to said “bad-order” car.
Witness Snyder, whose testimony respecting the accident is above related, testified in rebuttal that, when the collision occurred, Koske was not at the opening between, said cars, but was half a car length forward of the chained car, and that, when collision occurred, “I hollowed to him to pull the air, and he pulled the air on the
The above comprises the substance of all the testimony relating to the immediate scene of the accident. At the close of the trial the court, after stating certain uncontroverted facts, instructed the jury as follows:
“'On this state of facts only two questions arise in this case: First, was the deceased, Norman Edward Sweat, injured and did he die as the result of said injuries while he was an employee of the defendant and while discharging a duty which he owed to the defendant? If the plaintiff has established by a preponderance of the evidence that he was injured and died as the result of the injuries by reason and on account of the violation of the safety appliance act, and that at the time he was injured he was engaged in a duty which he owed to the defendant as an employee of defendant, then the only question remaining is the amount of damages. Now, if you shall find from the evidence that the deceased was a mere volunteer or licensee, as claimed by defendant, and that it was not his duty to be between the defective car and the lumber car, then there could be no recovery in this case. Whether he was actually engaged in the discharge of his duty as an employee of defendant at the time he was injured is a question for this jury to determine upon the evidence, and on this question the plaintiff must establish by a preponderance, which means the greater weight, of the evidence, that at the time Norman Edward Sweat was injured he’ was an employee of the defendant and as such employee was engaged in the proper discharge of his duties to defendant. If that has been proved by a preponderance of the evidence and to your satisfaction, then the only question left for you to consider is the amount of damage. If, however, the plaintiff has failed to establish by a preponderance of the evidence that the deceased, Norman Edward 'Sweat, was an employee of defendant, engaged in the proper discharge of his duties
As before stated, the jury returned a verdict for the plaintiff. Was the instruction given by the court and above quoted a correct statement of the*"issue to be determined, and was a verdict for the plaintiff sustained by the evidence? We think the issue .submitted to the jury by the above instruction is a correct statement of the law and the facts, and that a verdict for the plaintiff is sustained by the evidence.
The defendant insists that Sweat in going between the cars, Avhether for the purpose of inspecting or readjusting the coupling, or otherwise, Avas a mere volunteer, and for that reason no recovery can be had. We do not see how it. is possible to so hold in face of the rule promulgated by the defendant hereinbefore- referred to, prescribing the duties of employees in such cases. It is no ansAver to the apparent Avillingness of the deceased to assist, if assistance was needed, that he had not been invited to do so, or that the crew of the train containing the “bad-order” car was able to take care of their OAvn trouble. The rule does not require an employee before he shall assist or offer to assist, Avhere apparently assistance may be needed, to decline such seiwice until he shall be specially invited, or unless he shall have first determined that no one who perhaps stands in a closer relationship to the service to be performed is available. 'Such an attitude on the part of an employee would be a violation of both the letter and the spirit of the rule, and would result in an utter
In this connection what the supreme court, of the United States said in Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 508, is applicable here:
“It is most earnestly insisted that the findings' establish that Campbell was not in the course of his employment when he was injured, and consequently that judgment could not properly be entered in his favor upon the cause of action established by the general verdict. This invokes the doctrine that, where an employee voluntarily and without necessity growing out of his work abandons the employment and steps entirely aside from the line of his duty, he suspends the relation of employer and employee and puts himself in the attitude of a stranger or a licensee. The cases cited are those where an employee intentionally has gone outside of the scope of his employment or departed from the place of duty.’ The present case is not of that character; for 'Campbell, as the jury might and presumably did find, had no thought of stepping aside from the line of his duty. From the fact that he disregarded and in effect violated the order as actually communicated to him, it of course does not necessarily follow that he did this wilfully. The jury was not bound to presume — it would hardly be reasonable to presume— that he deliberately and intentionally ran his train out upon a single track on which he knew an incoming, train with superior rights was then due. However plain his mistake, the jury reasonably might find it to be no more than a mistake attributable to mental aberration, or in
The court then speaks of some of the startling consequences that would ensue if held otherwise, and closes -by saying: “The unsoundness of the contention is so apparent that further discussion is unnecessary.”
We have examined the sevei*al cases cited by the defendant in support of its view of the present case, but, excepting three to be referred to presently, none of them, in so far as we have been able to discover, involves in any Avay the federal safety appliance act, nor Avere the courts deciding them confronted Avith a rule of the defendant company prescribing the duties and obligations of employees as in the case at bar, and are otherwise so dissimilar to the instant case as to be regarded without application. Nor do Ave believe that the application of any of the three cases referred to is sufficient to justify an extended review of the same, particularly in view of the disposition we feel compelled to make of this case on another point.
The case of St. Louis & S. F. R. Co. v. Conarty, 238 U. S. 243, the one, perhaps, most relied upon by defendant, involved a consideration of the safety appliance act, but Avas not affected by a rule of the defendant prescribing the duties of employees, etc., as in the case at bar. We think but a casual examination of this case Avill readily show that it can in no Avay affect the ruling required to be made in the instant case, particularly when read in connection with the later case of Louisville & N. R. Co. v. Layton, 243 U. S. 617. The same may be said of the case of Dodge v. Great W. R. Co., 164 Ia. 627, wherein the plaintiff sought to invoke the provisions of the safety appliance act, but without success. The case of Byram v. Illinois C. R. Co., 172 Ia. 631, did not involve the safety appliance act, but in the effort to save himself from the
We are likewise of the opinion that upon the facts disclosed by the evidence in the present case the defendant is liable for the death of deceased. This disposes of the various other assignments,, of error relating to instructions given and instructions refused, pertaining to this phase of the case.
The remaining principal assignments of error are: (1) That defendant did not have a fair trial in the lower court; that the whole trial was one of emotion and not a fair and just consideration of the rights of the parties; that there was a stage setting cunningly indulged in by the friends of the plaintiff and her deceased husband in the interests of plaintiff* and to the disadvantage and prejudice of the defendant, which the defendant was powerless to overcome, all of which culminated in the excessive verdict of '$55,000, reduced by the court to $40,000; (2) that the verdict, even as reduced, is grossly excessive; (3) that the court erred in not instructing the jury that if they found for the plaintiff they should reduce to its present worth the financial loss which the evidence showed the plaintiff, suing for herself and next of kin, had sustained, and return a verdict for that sum only.
We think the defendant is entirely right on the last two assignments and has much just reason for complaint under the first one, and for all of which we think a new trial must be granted. The aforesaid assignments being so related to each other as they are, may be considered together. We have carefully examined the record, which discloses an account of things complained of occurring at the trial, of an unusual nature, for the most of which the trial court can scarcely be held responsible, but'
- As before stated, we think the verdict, even as rendered, is grossly excessive, and its excess is to be accounted for largely, if not entirely, in what we believe was the court’s error in refusing to instruct the jury that it was their duty to reduce the ascertained proceeds of the probable future earnings of deceased to their present worth and include in their verdict that sum only. The defendant tendered an instruction of that import, but the same was refused by the court, and it gave no instruction on the subject. That.the defendant was entitled to such an instruction, and that, if tendered, it was the duty of the court to give it, is, we think, borne out by all of the federal authorities on the subject, authorities which are controlling upon the state courts on the measure of damages in actions based upon the federal employers’ liability act and federal safety appliance act, as was the action in the case at bar. See Chesapeake & O. R. Co. v. Kelly, 241 U. S. 485; Chesapeake & O. R. Co. v. Gainey, 241 U. S. 494. In both of these cases the Kentucky court of appeals was reversed, and for the sole reason that the state court rejected the present worth theory and approved the verdict of the jury on which a judgment was entered representing the whole bulk sum óf future earnings as payable at once. See, also, Louisville & N. R. Co. v. Holloway, 246 U. S. 525; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545; Pierce v. Tennessee Coal, Iron, & R. Co., 173 U. S. 1.
Except for the somewhat unusual element of damages injected in the case, alleged to result from being deprived of a few simple ordinary domestic services the deceased may have been accustomed to perform in and about the home, an element which when measured in money value, as it must needs be, is always of a most doubtful and uncertain nature at best, except, we say, for this element alone, the evidence furnishes a basis from which the damages to be awarded can be ascertained to almost a mathematical certainty. Applying the formula for obtaining the present worth on the basis of the annuity tables prescribed in the Nebraska statute, which has been the method followed in this state for a great many years, and assuming, as the évidence shows, that deceased earned $20'0 a month, which is probably the apex of wartime wages, and that his personal expenses did not exceed $30 a month, so that he contributed to his family $170' a month, or $2,040 a year, and assuming, further, that he would have continued doing so throughout his whole 30 years’ expectancy of life, the present worth of the.entire proceeds on the ordinary 6 per cent, basis would be exactly a fraction less than $21,857.1'5.
We do not wish to be understood as saying that this is the exact sum, no more nor no less, which should be awarded for future earnings. It depends on the rate of interest at which the proceeds should be computed, and perhaps whether or not the interest should be computed on the system of annual rests, but what we do mean to say is that this is the principle on which the award for future earnings should be made, and, approximately speaking, the above sum cannot be far from the just amount to be awarded in this case.
If, perchance, plaintiff should claim, that we have a
Aside, then, from that which might properly be allowed for the loss of simple, domestic services before referred to, of the money value of which no evidence was offered, it is difficult to see how the judgment could be greater than the amount above indicated. While the domestic services referred to may be invaluable, estimated from a standpoint of sentiment and parental association, measured by a money value, as they must be, they cannot be more than inconsiderable under the evidence in the case. So that even allowing a most liberal sum for this item would still leave the judgment rendered grossly excessive.
We regret that it seems necessary to order a new trial of the case, and were it not for this item of domestic services above mentioned, the court could readily adjust the amount to be awarded with exact justice to both parties, but, because of this and the errors pointed out in the record, the judgment must be reversed and a new trial ordered.
Reversed.