101 Neb. 578 | Neb. | 1917
This is an appeal from a judgment in favor of one P. Charles Tankersley for personal injuries alleged to have been sustained by him for negligence on the part of the Lincoln Traction Company. The facts briefly stated are as follows: The Lincoln, Capital Beach & Milford Railway Company, a corporation entirely distinct from the Lincoln Traction Company, was incorporated prior to September, 1906,' for the purpose of constructing and operating an electric railway west from the city of Lincoln to Capital Beach and other points further west. On
On the 14th day of May, 1907, the Lincoln Traction Company, entered into an operating contract with the Beach Company. By the terms of this contract the Traction Company agreed to furnish, and operate cars, as agent of the Beach Company, over its tracks constructed to Capital Beach west of the city. The Traction Company was to receive 2% cents per kilowatt hour for current, and actual expense for labor and material necessary in the operation of the cars. It was to collect all-fares, deduct therefrom the cost of current and operating expense, and render a monthly statement to the Beach Company. It was not to be liable for injuries or damages in operating cars over the Beach Company’s line. Profits were first to be applied to damages recovered, if any, and extraordinary repairs. Employees were to be discharged on written request of the Beach Company. The net balance arising from fares after deducting the above was equally divided between the Traction Company and the Beach Company. The contract contained other details not material to the instant case. At the time of the alleged injury the Traction Company was operating cars under this contract on the Beach line. It sustained no other relation to that company, the Burlington Company, or the signal system than that which can be inferred from its compliance with this operating contract. It had no authority, nor was any delegated to it, to modify or meddle with the signal system, or the wires which caused plaintiff’s injury. The signal system, including the wires, was installed and maintained by the
At the time of the plaintiff’s injury, and for more than a month prior thereto, cars on the Beach Company’s track were operated only as far west as the Burlington track, which was then its western 'terminal. There was on the rail of the Beach Company’s track,- 50 feet east of the Burlington’s east rail, a derailing frog, so that the Traction Company’s car could not approach closer than a point 50 feet east of the east rail of the Burlington track without being derailed. By reason of this fact the rear platform of an approaching car would stop about 75 feet east of the offending wires. The plaintiff, when he arrived, safely alighted, and says he walked rapidly straight west, passed under the warning gate, and was tripped by the wires which operate the semaphores. It is claimed that a path had been created, which the plaintiff was following. The alleged path, however, was not well defined, and was rough and obstructed, and no effort had been made to make a safe walk at the point in question. The path, if any, was created subsequent to the time the wires and the signal system had been installed by the Burlington at the point in question, and persons who created it, such as it was, had to walk or step over these wiresi It appears that plaintiff was tripped by and fell over these wires and was injured. Immediately adjacent to the wires and gate' was a good crossing maintained by the Burlington, pursuant to statute, for the accommodation of the public. After the injury the Burlington boxed the wires at the point where they were exposed, and this fact was used by plaintiff in
' After the jury had been placed in the box and the voir dire examination made, the plaintiff settled with the Burlington for $3,200. Before any evidence was offered the plaintiff filed a supplemental petition setting up this settlement and the amount agreed to be paid by the Burlington on account of its negligence. The Traction Company moved to strike this supplemental petition from the files, for the reason that the matter therein set forth did not come within the province of a supplemental petition. The motion was overruled. It was thus disclosed that the Burlington settled and confessed judgment in behalf of the plaintiff for the sum of $3,200.
The same question was canvassed by the court in instruction No. 18, and the jury were ' there told the amount that the Burlington had paid in satisfaction of its admitted liability to the plaintiff. This instruction was excepted to. The jury returned a verdict in favor of the plaintiff and against the Traction Company for $6,400, and then recited that they deducted $3,200, the amount for which the Burlington had confessed judgment, leaving the verdict against the Traction Company $3,200. A motion for a new trial was filed and overruled, and judgment entered against the Traction Company. This appeal is prosecuted for the purpose of reversing that judgment.
The appellant’s first two assignments of error are': The court erred in refusing to strike the plaintiff’s supplemental petition from the files; and the court erred in permitting it to be disclosed to the jury that plaintiff had settled with the Burlington Eailroad Company, and the amount of the settlement. These assignments of error will be considered together.
' There is another reason why the supplemental petition should have been stricken from the files. Section 7717, Rev. St. 1913, provides, in substance, that negotiations looking to a settlement between litigants cannot be disclosed to the jury on the trial of the merits. This expression of the legislature would seem to apply with full force in this case. The consideration of such a settlement and its effects is for the court,- and not for the jury.
In that case it is said in the syllabus: “Evidence of subsequent repairs made or precautions- taken after an accident or the infliction of an injury is not admissible to prove antecedent negligence.” In the body of the opinion it is said: “Over defendants’ objection, plaintiff was permitted to prove that subsequent to' the flood de
In Standard Oil Co. v. Tierney, supra, it was held that evidence that the defendant had taken certain precautions calculated to prevent a repetition of the injuries was not admissible.
In Nalley v. Hartford Carpet. Co., supra, it Was held that evidence of safeguards placed after the accident was not admissible for the purpose of showing prior negligence.
In Sappenfield v. Main Street & A. P. Co., supra, it was held that evidence of the substitution of a safer appliance after the accident was not competent.
In Hodges v. Percival, supra, it was held: “New measures or devices adopted after the accident do not necessarily imply that all previous ones were insufficient.”
In Shinners v. Proprietors of Locks & Canals, supra, it was held: “If an accident happens through the alleged negligence of an employer, his subsequent acts in taking additional precautions to prevent other accidents are. not admissible in evidence, in an action against him for the injuries occasioned.”
In Anson v. Evans, supra, it was held that the subsequent conduct of the defendant could not be shown for the purpose of establishing antecedent negligence.
In Sievers v. Peters Box & Lumber Co., supra, it was held that evidence of repairs made after the injury had been sustained was not admissible to show antecedent negligence.
In Sylvester v. Town of Casey, supra, it was held that evidence of subsequent repairs of the sidewalk was inadmissible to show the negligence of the city.
The record clearly shows that defendant did not have a fair trial, and for this reason the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.