51 Neb. 527 | Neb. | 1897
This was an action under Lord Campbell’s act by Effie E. Thompson, as administratrix of the estate of Amos Thompson, deceased, to recover from the Missouri Pacific Railway Company on account of the death of her intestate, alleged to have been caused by the negligence of the defendant. Issues were joined and a trial to a jury begun. When the plaintiff rested, the court, on defendant’s motion, granted what is frequently, but somewhat loosely, styled an “involuntary nonsuit,” by discharging the jury from further consideration of the case and then entering an order of dismissal. To reverse this the plaintiff brings the case here by proceedings in error.
The order discharging the jury because of the insufficiency of plaintiff’s evidence, and dismissing the case, was erroneous. Since the trial of the case in the district
Amos Thompson, a man thirty-four years of age, of sound health and normal mental faculties, was in February, 1892, employed as a brakeman by the railway company. He had previously had one year’s experience as a brakeman on another railway. On the 28th of October, 1892, he was killed while making a coupling at Union, Nebraska. He was at the time, and had for some months been, regularly engaged in assisting to operate a freight train running between Union and Omaha. This train regularly carried a car for the conveyance of passengers, described by one witness as a “Missouri Pacific standard coach,” but elsewhere referred to as a “combination car.” It was provided with what is known as a Miller coupler, being the hook-like device usually found on passenger trains. It would seem that this coupling apparatus was defective, or else that in its construction it is not adapted to coupling to the ordinary link and pin draw-bar commonly in use on freight cars, because in making couplings it quite frequently “slipped by,” as the witnesses say, that is, the Miller hook on this car failed to meet the draw-bár of other cars, but passed to one side, thus preventing a coupling and crowding- the cars more closely together than is proper. One witness says that it had
A strenuous effort was made by counsel for the plaintiff to show that the Miller hook slipped by, not laterally, but below the draw-bar. From this postulate it is argued, in the first place, that the accident was caused, not by the generally defective character of the hook, but by the looseness of the metal guard; and secondly, that, slipping under, the cars were brought much nearer together than would have been the case had it slipped by laterally, because in the latter case the first contact would be between the end of the hook and the dead-head of the front car, which would leave a space of abqut twelve inches free. As already indicated, the defect in the guard was also an obvious defect, at least as open to Thompson’s observation as to that of any other person, and in the next place, the evidence wholly fails to sustain the theory that the hook slipped under. All the witnesses testify to dinges on the dead-heads or bumpers of the cars, so situated that the evidence discloses nothing which could have caused them except a lateral slipping-by of the couplers. Moreover, the only injuries observed on the upper part of Thompson’s body were two small bruises, one upon his chest, the other upon his back; and had the hook slipped under the draw-bar, the evidence as to the condition of the car’s shows that they would have come so much nearer together that a further and more extended crushing of Thompson’s body would almost inevitably have taken place. This circumstance is of great importance in the consideration of another feature of the case. We think that so far as the plaintiff rested her case upon the condition of the couplers, it was wholly without merit.
It was also pleaded that the cars had been generally repaired subsequent to the 1st day of August, 1891, and not provided with automatic couplers as required by the act of the legislature which went' into effect July 9, 1891. (Session Laws, 1891, ch. 19.) This theory is casually re
It is also alleged that the track at the point referred to was defective because of improper ballast; but there
/ Finally, it was alleged that the freight car was defectively constructed, by reason of a bolt of unusual length which projected from the end of the car, and which, it is alleged, struck Thompson and caused his death. Several witnesses testify to the existence of this bolt. Their testimony places it at such a point on the end of the car that it might strike a person standing as Thompson did to make the coupling. One witness says that it extended out the width of four or five burrs, and perhaps more than half an inch from the burr. This leaves it a little uncertain as to whether there were four or five burrs on the bolt and a projection of half an inch beyond the outer one, or whether the latter statement was intended to limit and correct the former. Another witness says that he measured the bolt, and it was four and a half inches long and extended about half an inch from the end. How the rest of the space was occupied does not appear. Another witness grasped the bolt with his hands, and by that method estimated that it projected an inch and a half to two inches from the end of the nut. We have already mentioned the wounds found on Thompson’s body. His. legs were somewhat injured, presumably from being dragged along the track after the cars struck. The only other marks or injuries discovered were two small bruises, — one in front, about over the heart and about the size of a silver dollar; the other a smaller bruise on the back, almost opposite the first. The witnesses who observed the bolt testify as to its location in such a way as to justify a fair inference that the bruise over tiie heart was caused by the end of this bolt. As already stated, if the Miller hook slipped by laterally it would strike the dead-head of the front car in such a way as to leave a space of about twelve inches where Thompson was stand
Reversed and remanded.