79 Neb. 671 | Neb. | 1907
Lead Opinion
The plaintiff had judgment, from which the defendant appeals. The defendant is a city of the second class with less than 5,000 inhabitants, and owns and operates an electric lighting plant within its boundaries. The plaintiff was a railway brakeman in the employ of the Chicago, Burlington & Quincy Railway Company, which operates a line of railway through the limits of the defendant city. The plaintiff’s cause of action is based upon the complaint that the defendant, in the operation of its lighting plant, had stretched wires over and across the right of way of the railway company in so negligent and careless a manner that they Avere not sufficiently high to clear the body of a man standing on top of a freight car in the usual course of the operation of the trains of the railway company, and that the plaintiff, while engaged in his duties as a brakeman, was required and compelled to serve on top of such cars while the trains were, switching in the transaction of the business of the company at the station in the defendant city, and that, while so employed, without knowing the dangerous situation of the wires, and in the darkness of the night, was caught by one of the wires of the defendant’s lighting system, thrown to the ground and seriously injured. The answer admits that the plaintiff fell from the train and sustained an injury, denies the other allegations of the petition, charges the contributory negligence of the plaintiff and negligence on the part of the railway company. The reply is a general denial.
The first assignment of error discussed by appellant is that the verdict of the jury is not sustained by the evidence. The train on which the plaintiff was employed was in charge of conductor Hart. The plaintiff and Garner were his brakemen. The plaintiff was on top of the car immediately in front of the car upon which Garner was located. They were switching in the yards in the nighu season, the train moving east, when Garner heard the plaintiff cry out, saw his lantern drop, and the plaintiff
On the cross-examination of the witness Garner, he testified that one of the physicians called to see the plaintiff at Orete asked him how the accident occurred, and he answered that he told him that he thought the limbs of a tree knocked Todd off and hurt him; that he did not knoAV at that time where the Avires were with reference to the tree. The defendant offered to prove by this witness that at the time the accident occurred he kneAV that they had not passed the tree. Objections to the offer were sustained. The conversation with the doctor was immediately after the injury and. before the witness had made any investigation with reference to surrounding objects. His testimony as to the point where the plaintiff fell was based entirely upon the condition of the ground ascertained from a subsequent examination of the premises. Until that examination was made, he had no knowledge of the existence or location of'the wires, and, had he tes
The plaintiff himself testified that his average earnings at the time of the accident were $75 a month. On cross-examination the defendant sought to prove that out of the plaintiff’s earnings he contributed to the Burlington Voluntary Relief Association. He was permitted to answer that he did, but objections to interrogatories tending to draw out from the witness how much he contributed were sustained. We are unable to understand how the rights of the defendant were affected in anywise by this ruling of the court. There is nothing in the record tending to show the character of this association or the purpose of making such payments, except as the witness stated that they were for an equivalent. He stated thal he had not been paid in full by this department for loss of time and service occasioned by the accident, that he had made no settlement with the railway company in any way. He was asked: “Did you not give the Burlington Voluntary Relief Department a receipt in which it was stated that, in consideration of their paying you money, you Avaived all damages against the Burlington road?” An objection to this question Avas sustained, and the ruling is assigned as error. The question Avas not followed by an offer of proof, and in any event was entirely immaterial. It seems to be the theory of the defendant that the railAvay company was a joint tort-feasor with the defendant, and that a release from the railway company would discharge the liability of the defendant. A sufficient ansAvor to this claim is that it would be an affirmative defense and is not pleaded.
The defendant also offered to prove that at the time these wires were strung across the Burlington tracks a station agent in the employ of the railway company directed the height at which they should be erected. This evidence was excluded by the trial court. If admitted,
It is urged that the city is not liable because at the time1, the accident occurred, and since the destruction of the Burlington depot, the wires were not in use, their commercial use having been abandoned. It is conceded that, had the accident occurred while the wires were in actual use, the defendant Avould have been liable for the negligent acts and omissions of its servants. We cannot concur in this contention. The wires were originally placed there for commercial purposes. After the accident they «■ere removed by the city authorities and stored Avitli other property belonging to the defendant. The city had attempted to make the wires secure immediately after the fire. The agent of the defendant who performed that service was acting in the line of his duty. Cities of the class of the defendant are expressly authorized by statute fo erect and maintain electric lighting plants, and a municipality that lawfully engages in commercial enterprises is liable to the public the same as an individual.
And, finally, it is urged that the court erred in overruling the motion for a new trial. One of the grounds set out in the motion for a new trial was newly discovered evidence. Affidavits were filed in support of that branch of the motion. We have examined the affidavits, and, had the persons avIlo subscribed to these affidavits testified as disclosed by the affidavits that they would, their evidence Avould have been cumulative only, and the trial court was chargeable with no abuse of discretion in overruling the motion for that reason.
We find no reversible error, and recommend that the judgment be affirmed.
By the Court: Eor the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The facts in this case are set forth in the former opinion, ante, p. 671. The correctness of the proposition stated in the first and second points of the syllabus Avas not challenged upon the reargument; but it Avas insisted that the court did not sufficiently consider the error alleged in sustaining objections to a question asked by the defendant in the cross-examination of the witness Garner, nor the alleged error in the overruling of the motion for a new trial on the ground of newly discovered evidence.
1. The Avitness Garner had testified to the examination made by him and his associates after their return from taking the plaintiff to Lincoln, and to the discovery that the wire in question Avas low enough to have caused the accident, and that there Avas no other obstruction which could have caused the same. Upon the cross-examination'
2. To entitle a party to a new trial on the ground of
We therefore recommend that the former judgment of this court be adhered to.
By the Court: For the reasons stated in the foregoing-opinion, the former judgment of the court is adhered to.
Affirmed.