57 Neb. 138 | Neb. | 1898
The Union Stock-Yards Company is a state corporation. It owns and operates at the city of South Omaha, in connection with its business of lotting, feeding, and caring for stock in transit, a system of railroads connecting its yards with various packing-houses located at that place, and which railroads connect the packinghouses and yards with the terminals of the various railways centering at that point. The switching and transferring of cars from the railway termini to the stockyards and packing-houses is carried on by the stock-yards company with its own engines, crews, and over its own tracks. On April 10, 1895, the stock-yards company had in its employ one Edward Goodwin, who was a brakeman, On this date Goodwin and the crew of which he was a member were ordered to bring from the Burlington road, or its terminus, six cars of cattle, and set the cars out at the stock-yards chute for the purpose of unloading. One of the cars in this train was a Hammond refrigerator car equipped with an ordinary hand-brake. Fitted horizontally on the top of the brake-rod or shaft, extending above the top of the car, was an iron wheel used by brakemen' for the purpose of setting the brake attached to the lower end of the brake-rod by a chain. This horizontal iron wheel was fastened to the brake-rod by a nut screwed on the end of the shaft. Goodwin, while in the discharge of his duties as such brakeman, in switching out these six cars of cattle, climbed on this Hammond refrigerator car, and while the six cars Avere moving he attempted, as was his duty, to set the brake. The nut which should have held the horizontal wheel firmly to the brake-rod came off. The wheel game off,
1. As already stated, the car on which was the defective brake that caused Goodwin’s injury was not the property of the stock-yards company. This fact, however, is no defense Avhatever for the stock-yards company in this case. A person or corporation using the cars or appliances of another person or corporation, as
2. A contention of the stock-yards company is that in order for Goodwin to recover he was "compelled to show by a preponderance of the evidence that a reasonably careful inspection would have disclosed the defect in the brake which caused his injury, and that he failed to make such proof. We have already stated the actual condition of this brake at the time it was used by Goodwin, in what manner the brake was defective, and the latent character of this defect to a person inexperienced in the construction of brakes who simply looked or glanced at it. The argument here is that from these undisputed facts the jury were not warranted in inferring that a careful inspection of this brake and car by the inspectors of the stock-yards company would have revealed the brake’s defective condition. We do not agree to the contention. ' On the contrary, we are persuaded that from the undisputed facts in reference to this defective brake the jury were justified in drawing the inference that a careful inspection of the brake and car would have revealed the defect. It by no means follows that because a person inexperienced in the construction of a brake, seeing this one, would not have observed the. defect that an inspector inspecting this car would not by the exercise of ordinary care have discovered the de
In Chicago, B. & Q. R. Co. v. Wymore, 10 Neb. 615, Wymore’s intestate was killed in a collision between two trains. One train was standing on a siding, and a train on the main line collided with it because the switch-key in possession of the brakeman failed to open the switch-lock; and it ivas held that the jury might properly infer from these facts that the railway company was guilty of negligence in sending out a brakeman equipped with a key which it was not known would properly control all the locks which he might have occasion to use. Irvine, 0., speaking for the court, said: “The evidence showed without contradiction that this key would not unlock this particular lock, and there was no evidence tending to show that any test had been made of it before the accident, or that any. precautions had been taken to ascertain its safety.”
In Union Stock Yards Co. v. Conoyer, 11 Neb. 617, Con-over’s intestate was last seen examining a train that liad been made up ready to move. His body was found between the rails on the track occupied by the train. Tlie second car from the rear was found derailed, caused by material on the track, and the train had moved some distance after the derailment, dragging the body of Conoyer’s intestate with it. There was no other propf of negligence. The present chief justice speaking for the
Other instructive cases on the subject under consideration are Spicer v. South Boston Iron Co., 138 Mass. 426; Missouri P. R. Co. v. Barber, 24 Pac. Rep. [Kan.] 969; Missouri, K. & T. R. Co. v. Chambers, 43 S. W. Rep. [Tex.] 1090.
3. It is next insisted that the judgment of the district court is erroneous because the evidence shows that the stock-yards company had a “well known rule,” “custom and manner” of doing business, namely, that all trains in which there were cars of live stock were taken to the chute for the purpose of unloading the stock before the stock-yards company inspected the cars; and that Goodwin continued in the service of the stock-yards company with full knowledge of this rule or custom, and thereby assumed the risk of the defect which caused his injury. Assuming, without deciding, that the evidence in behalf of the stock-yards company established the existence of such well known rule and custom, and that Goodwin, with knowledge thereof, remained in the service of the company without objection, the contention is untenable, for the reason that no such defense as this was pleaded by the stock-yards company. No such an issue was made by the pleadings in the court below, and the evidence, and all the evidence, introduced which tended to show the existence of such rule or custom was irrelevant. A
And this disposes of another contention of the stockyards company that the court erred in refusing to submit by its instructions this defense to the jury. What the stock-yards company did plead in the court below was that before Goodwin went upon the refrigerator car and attempted to set the brake thereon he knew that such car had not been inspected. But this is not a plea that Goodwin assumed the risk of the defect which injured him by continuing in the service of the stock-yards company and working upon its trains in pursuance of a well known rule and custom that the cars were to be unloaded before being inspected.
4. Another contention is that Goodwin knew at the time he went upon the refrigerator car and attempted to set the brake thereon that the car had not been inspected; and therefore, in attempting to set the brake on that car, he assumed the risk of its being defective. In support of counsel’s contention numerous cases
5. The next contention is that the court erred in permitting Goodwin to introduce in evidence a book known as the “Code of Rules” adopted by the Master Oar Builders’ Association. A number of witnesses called by the stock-yards company had testified, presumably as experts, that in their opinion a careful inspection of this brake by duly qualified ca.r inspectors would not have revealed its defective condition. Each of these witnesses on cross-examination said in substance that what he meant by a reasonably careful inspection ovas such an inspection and examination as Avas required by this “Code of Rules.” The code Avas identified by the Avitnesses as being the one issued by the Master Oar Builders’ Asociation, and the one in force in the month of April, 1895, in the state of Nebraska, and the one under which the inspectors of cars operated, and by Avliich they were governed. When Goodwin came to put in his rebuttal testimony he offered' in evidence this “Code of Rules.” It is first insisted by counsel, for the stockyards company that the court erred in permitting the book to go in evidence because counsel had not had an opportunity to cross-examine his witnesses Avith reference to the contents of the book. We confess Ave do not see the force of this objection. When the book Avas offered in evidence the case had not closed, and avg do not know from the record why counsel for the stock-yards company did not recall their witnesses who had iden
A second contention is that the book itself was incompetent testimony. We do not think .it was. The principal issue litigated on tbe trial was whether a careful inspection would have revealed the brake’s defective condition, and the stock-yards company was permitted to bring experts upon the stand and have them testify that in their opinion a careful inspection of this brake according to the Code of Rules of the Master Oar Builders’ Association would not have revealed its defective condition. Now the book complained of is entitled “A Code of Rules Governing the Condition of and Repairs to Freight Cars,” etc., and under the head of “Brakes in Bad Order” the very first rule is that a brake shall be considered in bad order unless the brake wheel is secured to the shaft with a properly fitted nut. This code of rules then tended to show that it was the duty of an inspector, when inspecting a brake, to ascertain if the nut was properly fitted to the braise-shaft. In other words, it tended to rebut the expert testimony of the stock-yards company’s witnesses that a careful inspection of the brake would not have revealed its defect. But this evidence went further. One, if not more expert witnesses, had been permitted to testify for the stock-yards company that a reasonably careful inspection of this brake by a car inspector consisted in the inspector looking at and observing the wheel and the nut, but that such an inspection did not require the inspector
6. On the trial the district court on its own motion gave to the jury among others the following instruction: “'Contributory negligence is based upon and presupposes the negligence of the defendant, and cannot exist without some negligence on defendant’s part. In determining whether or not plaintiff was guilty of contributory negligence, you must take into consideration all of the facts and circumstances in the case as detailed by the evidence, and if from all the evidence you find that the plaintiff did not exercise usual and ordinary care, when by the exercise of ordinary and usual care he might have avoided the injury complained of, then, if you so find, he -would be guilty of contributory negligence, and he could not recover.” The criticism of this instruction is that by it the court told the jury in effect that the stock-yards company admitted it had been guilty of negligence. It stood admitted by the pleadings that the stock-yards company had not caused this car to be inspected before ordering its employés to use it. The neglect to inspect this car was evidence of negligence on the part of the stock-yards company. One of the defenses interposed by the stock-yards company to Goodwin’s action was that his injury was the result of his
Affirmed.
Hughes v. Winona & S. P. R. Co., 27 Minn. 137; Green v. Cross, 79 Tex. 130; Beckman v. Consolidated Coal Co., 57 N. W. Rep. [Ia.] 889; Schaible v. Lake Shore & M. S. R. Co., 56 N. W. Rep. [Mich.] 565; Sullivan v. India Mfg. Co., 113 Mass. 396; Chicago, B. & Q. R. Co. v. Merckes, 36 Ill. App. 195; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; St. Louis & S. R. Co. v. Britz, 72 Ill. 257; Pennsylvania Co. v. Lynch, 90 Ill. 333; Stafford v. Chicago, B. & Q. R. Co., 114 Ill. 244; Simmons v. Chicago & T. R. Co., 110 Ill. 340; Greenleaf v. Illinois C. R. Co., 29 Ia. 14; Chicago & N. W. R. Co. v. Donahue, 75 Ill. 106.