54 Neb. 299 | Neb. | 1898
The track of the Union Pacific Railway Company extends due east and west through the city of Grand Island, in this state, and at that city the railway company has an extensive switch yard filled with a network of tracks. Two of these tracks extend in straight lines east and west through the yards, and the south rail of the north track is about eight feet from the north rail of the south track. The. west end of this switch yard is crossed at right angles by Walnut street, and on the west side of this street is a sidewalk. In August, 1892, and for some years prior thereto, Samuel Elliott was an employe of the railway company and located at said city. His duties were to inspect the wheels, brakes, and appliances and oil the journals of cars which came to that station. In this switch yard the railway company kept one or more switch or shifting engines, which were constantly employed, both day and night, in moving cars from one portion of the yard to another. About 5 o’clock in the afternoon of August 5, 1892, Elliott heard, or saw, coming from the west on the north of the two tracks just mentioned a train and at once started towards this train for the purpose of inspecting its wheels, brakes, etc., and oiling its journals when it should reach the yard and stop. The train which Elliott saw on the north track came to a stop about the time its engine reached the west side of Walnut street, and at that time Elliott had reached that locality, and, while standing between the two tracks with his back toward the south one, was struck by a passing switch engine running west on said
1. The first contention of the -railway company is that the finding of the jury that the proximate cause of Elliott’s injury was its negligence is not supported by sufficient evidence. The evidence on behalf of Elliott tended to show that he took his position between the two tracks immediately west of Walnut street for the purpose of performing his duties when the train coming from the west should come.to a stop; that the train stopped and he was standing with his face toward the train waiting for-the brakeman to uncouple the air hose; that he had been in that position not more than a minute when he was struck by the switch engine running west on the south track, and that no warning of the approach of this shifting engine was given by bell, whistle, or otherwise. It is true that the evidence on behalf of the railway company tended to show that the bell upon the switch engine was ringing all the time it was running west. We cannot say that the jury’s finding that the bell on the switch engine was not rung and the whistle not sounded is not supported by sufficient evidence.
2. A second contention-of the railway company, and a more serious one, is that the jury’s finding that Elliott’s injury was not the result of his own negligence is unsupported by sufficient evidence. The evidence shows, we think without conflict, that Elliott was well acquainted with this switch yard, with the manner in which business was transacted there; that he knew that there were two switch engines in the yard which were constantly passing and repassing over the various tracks thereof; that the two tracks mentioned were unobstructed, and a person being upon either track could see trains or engines
3. The third argument.relates to the ruling of the district court in permitting Elliott to testify to a conversation that occurred between himself and the engineer of the shifting engine after the accident. Just a few seconds after the engine struck Elliott the switch engine came to a stop. The engineer jumped down from his cab, went up to Elliott, and, according to the latter’s testimony, the following conversation took place between them (we quote from Elliott’s evidence): “Why, he come up to me and he says, ‘Sam, I don’t want you to think I done that on purpose.’ He said, ‘all the time I had after I saw you was just to throw the engine over.’ He meant to reverse it. I made the remark there, I said, ‘it looked a damn sight like it, Ed, you running up there and not ringing your bell or whistle,’ and he said he knew it did, but ‘don’t say anything about it.’ That is his words.” It is now insisted that the court erred in permitting this evidence to go to the jury. We think the statements of
4. Another argument is that the court erred in giving to the jury the following instruction: “The statutes of this state provide that ‘a bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half to go to the informer, and the other half to go to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect.’ And in this case, if you find from the evidence that as the engine' approached the crossing on Walnut street a bell was not rung nor a whistle blown as required by the statute, and that the accident complained of was
5. A final argument, which we notice, is that the men in charge of the shifting engine and Elliott were fellow-servants, and that, therefore, the comxnon master, the railway company, is not liable for the injury which Elliott sustained through the negligence of his fellow-servant. Under the facts of this case the correctness of this contention may be conceded. But the railway company did not interpose as a defense to the action that these men were fellow-servants, either by way of answer, instruction, or, so far as the recox-d discloses, in any other manner; in other words, that defense was not presented to the district court, and such a defense cannot be urged for the first time in this court- Whether two servants of the same master are fellow-servants is sometimes a question, of law and sometimes a question of fact, sometixnes a mixed qxxestion of law and fact, to be determined in each case by the particxxlar facts and circumstances of that case; and we do not decide that the defense, to be availa
Affirmed;