On the 11th day of August, 1902, John T.. Connolly was struck and run over by a train, or part of a train, of freight cars operated by the Union Pacific Railroad Company, Avhile attempting to cross the tracks of said company at South Omaha.. One foot was entirely cut off in the accident, and both legs were so mangled as to necessitate their amputation about five inches below the knee. He brought suit against the railroad company and Elmer E. Pair, the engineer of the train which inflicted the injury, for damages resulting therefrom, charging that such injuries were occasioned by the negligent operation of the train and the defendant's road at the place where the accident occurred. The plaintiff alleges in his petition that he was struck by the train while crossing the tracks on a crossing which at the time was, and for many years had been, in common use as a public crossing. The negligence charged against both defendants is that the train in question was backed upon and over this crossing without any warning of its approach by the ringing of the bell or sounding of the ivhistle. The charges of negligence against the defendant company alone are: (1) That the train was backed upon and over the crossing without dis
The first three assignments of error are so intimately related that they should be considered together. They are based on the following rulings: (1) The refusal of the court to receive a verdict as to the defendant Fair at the second trial. (2) Overruling the defendant company’s second petition for removal to the federal court. (3) Overruling the objections made to the jurisdiction of the court at the last trial. It will be recalled that the cause had been once removed to the federal court and by that court remanded to the state court for trial.. The second
Three other assignments are in effect as follows: (1) That the court erred in overruling the motion of the defendant company for a verdict at the close of the testimony adduced by the plaintiff in making his case. (2)
The other two assignments both go to the sufficiency of the entire evidence to sustain the verdict and may be considered together. That the plaintiff sustained the injuries hereinbefore mentioned by being run over by a freight train, or part of a freight train, operated by the defendant company on its tracks at South Omaha between 3 and 4 o’clock in the morning of August 11, 1902, is conclusively established. The accompanying diagram represents with a fair degree of accuracy the loons in quo. The lines running diagonally from the northwest to the southeast of the diagram represent a system of tracks and switches maintained by the defendant company and the stock yards company at South Omaha; each track is represented by a single line instead of a line for each rail. The lines lying to the east belong to the defendant company; those to the west, to the stock yards company.
It is insisted that the place where the injury occurred was not a public crossing, and that plaintiff in attempting to cross the tracks at that point was a mere trespasser, or licensee, to whom the defendant company owed no duty. The defendant company’s passenger station, the hotels, stores, etc., of the city are on the east side of the tracks.. N street is the principal retail street, and the passenger station is not two blocks north of it. The stock yards, packing houses, and the offices and buildings used in connection therewith, and other places of business are west of the tracks. The evidence shows that for many years the
The evidence relied upon to show negligence in the operation of the train causing the injury and to sustain the charge of contributory negligence covers a large portion of a bill of exceptions containing over 1,000 pages. We cannot undertake to review it at length, but a somewhat extended statement of the facts and evidence can hardly be avoided in view of the questions presented. On the morning of the accident the plaintiff and some other stockmen arrived at South Omaha on a Burlington
The plaintiff testified that the accident occurred between 3 and 4 o’clock in the morning;.that he and his companion left the chute house on the morning of the accident and started to cross the tracks to N street for the purpose of going to their hotel. They took what the evidence shows was the usual route taken by pedestrians crossing the tracks from the chute house. On the way they met a man who said to them: “Now, boys, look out for the train,”
The testimony of his companion, covering the same
Their companion who bad remained on N street east of tbe tracks testified that be was there waiting for them to return when tbe passenger train came in; that at tbe same time be saw a freight train backing south on one of tbe tracks west of tbe track on which tbe passenger train was approaching; that be could see only tbe rear car, and that it displayed no lights, nor was there any person on tbe rear or top of tbe car; that after tbe passenger train bad gone by be beard cries in tbe direction of where tbe accident occurred, and ran over, found the plaintiff lying beside the track, injured as before stated, and assisted in carrying him to tbe station and subsequently to tbe hospital. Another witness testified that be beard plaintiff’s cries immediately after tbe accident, and upon investigation found him lying beside tbe rails of tbe west bound track.
But the defendant company contends that, even though its negligence be established, the evidence discloses such negligence on the part of the plaintiff , contributing to the injury as to preclude a recovery. This contention is based on certain inferences which counsel draw from the the testimony of the plaintiff and the man who accompanied him across the track, who are the only ones having actual knowledge of their acts after meeting the man who warned them to look out for the train. After reviewing their testimony at some length, counsel sum up in these words: “This testimony in short discloses that Connolly was familiar with the tracks at the point where the accident occurred, and so thoroughly had in mind the danger of crossing the tracks at that point that he mentioned it to Moore after leaving the chute house; that he knew the trains were liable to pass up and down the tracks at any moment; that he knew the noise made by the passenger train might drown the noise of signals made by any other train, and yet the conclusion, from the manner in which he was struck and thrown down, is irresistible that, when
The defendants offered the evidence of a witness taken at a former trial of the cause. Among other things this evidence shows that the witness had a conversation with the plaintiff immediately after the accident, in which he told how the accident occurred.. One question to the witness was: “State to the jury what you heard Mr. Connolly (plaintiff) say.” The answer was: “Well, me and Coulter walked up to him and says — asked him how this happened, and Connolly spoke very low. I am pretty certain that he said they tried to get through the cars, and crawled through the cars somewhere, and my impression was, at the time, they went over the bumpers between the cars.” An objection to the answer offered was sustained, and the defendant company now complains of this ruling. That part of the answer stating the “impression” the witness had at the time was clearly incompetent. As to the rest, substantially the same matter was subsequently received as a part of the testimony of the Avitness. The ruling therefore deprived the defendant company of nothing it AAras entitled to.
The defendant company called the plaintiff’s attorney as a Avitness, and after sliOAving by him that on the former trials of the cause he had made the opening statement to the jury, in which he had stated that it Avas a freight train that run over the plaintiff, offered to shoAV that he had never stated that it Avas four, six or eight cars that had run over him, previous to the last preceding trial. The offer Avas rejected, and the defendant company now claims it Avas entitled to shoAV this fact, in view of its theory that it was the entire train, and not the portion attached to the engine after the stock cars Avere cut out, that inflicted the injury. We do not pretend to say how far a client may be bound, if at all, by an opening statement made by counsel at a former trial. But he certainly could not be
Several assignments of error are hast'd on rulings of the court permitting the plaintiff to introduce the testimony of the conductor of the freight train taken on a former trial.. This testimony was offered on rebuttal, and was in reference to the length of the.train, the movements of the cars that remained with the engine when the train was divided at South Omaha to cut out the stock cars, the length of time required for the train to run from South Omaha to Council Bluffs, and the time it registered at Council Bluffs that morning. The objection urged against this testimony is that it was not proper rebuttal. We think jt was. The defendants produced a larger amount of testimony tending to support the theory that the plaintiff had been injured either by being struck by the rear car while the whole train of some 36 cars was backing over the crossing, or by crawling between, over, or under the cars of that train. Had either of those theories been established, the plaintiff, as we have seen, would have been convicted of contributory negligence. The conductor’s evidence offered in rebuttal tended to negative those theories and was properly received.
The defenda nt company complains of an instruction given by the court in these words: “The burden of proof is upon the plaintiff to establish by a preponderance of the evidence: (1) That the place where the plaintiff was injured was a crossing over defendant’s railroad track which had been commonly used by pedestrians for such a length of time that defendant knew of its said common use, or by the exercise of reasonable care should have known it; (2) that the plaintiff was injured substantially as alleged; (3) that said injury was caused by the negligence of the defendants, the railroad company and Fair, or by defendant railroad company in some one or more of the ways charged in the plaintiff’s petition; and (4)
Another criticism on this instruction is that the mile
Still another criticism of this instruction is that it “is upon the burden of proof and not upon the effect, as between the parties, of contributory negligence on the part of the plaintiff below that may be disclosed by the evidence, the instruction saying, in effect, that if the evidence introduced by the plaintiff does disclose contributory negligence, then the burden of proof is upon him to show that in fact he was not guilty of contributory negligence.” While this part of the instruction is not framed in the clearest language, we do not think the jury were misled by it to the defendant company’s prejudice. Negligence “which in any way caused or contributed to his (plaintiff’s) injury” would not necessarily be contributory negligence. An act or omission, to constitute contributory negligence, must be something more than a remote cause in the chain of circumstances (Lowrimore v. Palmer Mfg. Co., 60 S. Car. 153, 38 S. E. 430), but must be such as operates as the proximate cause, or one of the proximate causes, and not merely as a condition. Smithwick v. Hall & Upson Co., 59 Conn. 261, 12 L. R. A. 279, 21 Am. St. Rep. 104. See, also, 2 Words and Phrases Judicially Defined, 1544.1 This part of the instruction, then, reasonably admits of the construction that, if the plaintiff’s testimony disclosed that the injury was in any way related to any negligent act or omission of his, the burden of proof was upon him to show that such act or omission was not the proximate cause, or one of the prox
The court instructed the jury that it was the duty of the plaintiff to look and listen for the approach of trains, and the defendant company complains because the jury were not specifically instructed as to the directions in which he was required to look. If a more explicit instruction Avas desired on this point the party desiring it should have, tendered one covering the ground. Neither of the defendants did so, and the instruction as it stands is not erroneous.
On the question of damages, the court instructed the jury as follows: “If you find for the plaintiff under the evidence and these instructions, in determining the amount of his recoArery, you should take into consideration the nature and extent of his injuries, the fact that certain injuries are permanent, plaintiff’s natural expectancy of life, any mental or physical pain Avhich you find from the evidence he has suffered resulting from the injury, any expense necessarily incurred on account of the injury for surgical and medical care and hospital fees as shown by the evidence, his loss of earnings in the carrying on of hie business since the injury which the evidence shows to have been caused by the injury, together with such future loss of earnings due to the injury as you find from the evidence to a reasonable certainty will be caused by the injury, and return a verdict for the plaintiff in such an amount as you so find under the evidence and these instructions will be a fair and reasonable compensation for such expense, loss of earnings in the past, and such loss of earnings in the future as you find to a reasonable certainty Avill result from his injuries, together with fair and reasonable compensation for such pain and suffering as you find to be established by the evidence. If you find for the defendants, or either of them, you will so state in your verdict." The objections lodged against this instruction are that it does not.give any rule by which to estimate damages in cases of this kind, nor by which the
Complaint is made of certain acts of the trial judge committed, not while the trial was actually in progress, but during intermissions and adjournments. The complaint is that during such times he unduly manifested a friendly feeling, or interest, in the plaintiff in the presence of the jurors. This complaint was included in the motion for a new trial, and was supported by affidavits, which were met by counter affidavits. While these affidavits show that the learned judge treated the plaintiff with more familiarity and consideration than is generally shown a litigant by the trial judge, yet it does not appear that his treatment of the plaintiff differed substantially from that accorded by him to all others with whom he came in contact during the trial. While the record falls far short of convicting the trial judge of misconduct, or of showing that the defendant company was prejudiced by his conduct toward the plaintiff, it shows the advisability of a trial judge maintaining a proper distance between himself and the litigants before him in order to guard against the appearance of evil liable to arise from a failure to do so.
The attorneys for the plaintiff were also charged with misconduct in the motion for a new trial. That matter was submitted to the trial court on conflicting evidence, and its finding thereon cannot be disturbed.
It is also claimed that the court erred in overruling challenges for cause to certain jurors. Their examination on voir dire is set out at length in the record. This opinion is already too long, and it must suffice to say that the ex-
It is strenuously contended that the verdict of $27,500 is excessive. As we have seen, as a result of the accident both plaintiffs legs were amputated a few inches below the knee. At the time of the injury plaintiff was 31 years of age, in robust health.. He had a life expectancy according to the Carlisle table of over 33| years. He had been raised on a cattle ranch in Wyoming and was engaged in raising stock in that state. He owned 160 acres of land and held two sections under a lease. He had a herd of some 75 horses and 100 cattle which grazed upon his own land and miles of uninclosed land in that vicinity. His evidence shows that the returns of his business netted him, annually, from $400 to $600 over and above what' was required for the support of himself and family, and over and above the increase of his Jierds. He earned considerable breaking horses for cavalry use; his injury cut off that source of income. Many of the things he could do for himself in the conduct of his business he must now hire done. That he will sustain a direct pecuniary loss of at least $1,000, annually, as a result of the accident is a reasonable inference from the evidence. At his age an annuity of $1,000, payable quarterly, would cost $18,876. In addition to this, he has paid out considerable sums and suffered other losses in consequence of the accident. Although the accident occurred some years ago, as a result he still suffers considerable bodily pain, which, according to his testimony, keeps him awake until he is worn out toward morning. The bodily pain he suffered, and still suffers, from the injury is a proper element of damage. There is no hard and fast rule for estimating the amount to be allowed for that element. The most that can be said is that the jury must be governed by reason and common sense. In Swift & Co. v. Holoubek, 62 Neb. 31, a boy between 14 and 15 years old recovered a judgment for $11,500 for the loss of three fingers and part of a hand, leaving the thumb and index finger capable of some use.
In Kalfur v. Broadway F. & M. A. R. Co., 54 N. Y. Supp. 503, a child 18 months old lost one leg above the knee.. It was held that a recovery of $15,941.25, was not excessive. In Chicago City R. Co. v. Wilcox, 33 Ill. App. 450, a boy six years old lost one leg. It was held that a recovery of $15,000 was not excessive. In Roth v. Union Depot Co., 13 Wash. 525, a child nine years old lost one leg. Held, That a recovery of $15,000 was not excessive. In Western Union T. Co. v. Engler, 75 Fed. 102, plaintiff suffered acompound fracture of his leg, causing the bone to protrude and denuding the periosteum. Many pieces of bone were taken out, and pieces continued to work out for 20 months afterwards. There was no amputation and amputation was not necessary, but it appeared that the plaintiff would probably be permanently lame. It was held that a recovery of $15,000 was not excessive. In Chicago, B.
After a careful examination of the record, we are satisfied that it contains no reversible error, and recommend that the judgment of the district court be affirmed.
Affirmed.