Mo. Pac. R. Co. v. Baxter

Citation60 N.W. 1044,42 Neb. 793
PartiesMISSOURI PAC. R. CO. v. BAXTER.
Decision Date20 November 1894
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. A servant, by his contract of employment, assumes the ordinary risks and dangers incident thereto.

2. If the machinery, tools, or appliances furnished the servant by his master are obviously defective and dangerous, and the servant, notwithstanding, continues in the service, he thereby assumes the risks of any injury which he may sustain by reason of such defective appliances, unless he is induced to continue in such service by the promise of the master to remedy such defect.

3. The law does not require that an employer should furnish his servants the newest or the safest tools, machinery, or appliances for the performance of the work for which they are hired. If the master furnishes such machinery, appliances, or tools to the servant as are reasonably safe and fit for the performance of the work in hand, and which the servant in the execution of his work, by the exercise of ordinary care on his part, may use with reasonable safety to himself, the master has discharged his duty in that respect.

4. A railroad brakeman, a part of whose duty it was to couple cars upon tracks known by him to be unblocked and dangerous, while so engaged caught his foot in an unblocked guard rail, and was killed. His administratrix sued the railway company for damages, alleging that its failure to block the guard rails was negligence which caused her intestate's death. The petition did not allege that the deceased was inexperienced when he entered the employ of the railway company; that he was ignorant, at the time he entered the service of the company, that the guard rails of its main track were unblocked; that he did not know that the guard rail was unblocked at which he was killed; that he remained in the service of the company relying upon a promise made by it to block its guard rails; nor that guard rails blocked were less dangerous than unblocked. Held, that the petition did not contain averments of fact which negatived the presumption of law that the injury received by the deceased was one of the risks which he assumed by virtue of his employment, and therefore did not state a cause of action.

Error to district court, Saline county; Hastings, Judge.

Action by Margaret E. Baxter, administratrix of the estate of George Edward Baxter, against the Missouri Pacific Railway Company, for injuries causing the death of intestate. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

W. H. Morris, B. P. Waggener, David Martin, and James W. Orr, for plaintiff in error.

F. I. Foss and E. E. McGintie, for defendant in error.

RAGAN, C.

Margaret E. Baxter, administratrix of the estate of George Edward Baxter, deceased, brought this suit to the district court of Saline county against the Missouri Pacific Railway Company, hereinafter called the “railway company,” for damages under chapter 21, Comp. St. 1893, for the death of her intestate, her husband, alleged to have been caused by the negligence of the railway company. The administratrix had a verdict and judgment, and the railway company brings the case here for review.

There are many errors assigned and argued in the brief of counsel for the plaintiff in error. But as we have reached the conclusion that the petition of the administratrix filed in the court below does not state facts sufficient to constitute a cause of action, and that the judgment of the district court must therefore be reversed, it becomes unnecessary to consider any question in the record except the sufficiency of such petition. The petition of the administratrix alleged the death of George Edward Baxter; her appointment as administratrix of his estate; that he was her husband, and at the time of his death left the administratrix, his widow, and two minor children, him surviving. The petition further alleged: (4) That the defendant had so negligently, carelessly, and unskillfully constructed its railroad track at Talmage, both upon the main track, side tracks, and spur tracks, that any one who was an employé of said company, using due diligence, care, and skill in transacting the business of said company, was liable to be injured, hurt, and damaged on account of the negligent, careless, and unskillful manner in which the said track of the defendant was constructed at Talmage; that the said George Edward Baxter, while employed by the defendant at a reasonable salary as a compensation for his services, in the exercise of due care and skill upon his part in coupling the cars upon the side track of the defendant at Talmage, did, without any negligence upon his part, but on account of the negligence, carelessness, and unskillfulness of the defendant in the construction of its railroad bed, side tracks, and spur tracks, in not properly blocking and filling up the space between the outside rail and guard rail, have his left ankle caught just above the heel, between the guard rail and outside rail of said track, which threw him under the trucks of said cars, and he was thereby killed, which said killing was on account of the carelessness, negligence, and unskillfulness on the part of the defendant in the construction of their railroad, and while the said George Edward Baxter, the employé of the said railway company, was acting directly under the orders of the conductor of said train of which he was brakeman, and while he was using due care, diligence, and skill in the transaction of the business of said railway company.” The administratrix also alleged in her petition that her husband, at the time of his death, was 33 years old. At that time he was employed by the railway company as a brakeman on a train running between the stations of Crete and Talmage, in Nebraska, “including the main line of road at Talmage, the side tracks, spurs, and other tracks necessary to be used and operated by said railway company at said place in connection with their business to and from Crete, in Saline county, Nebraska.”

A railroad brakeman, a part of whose duty it was to couple cars upon tracks known by him to be unblocked and dangerous, while so engaged, caught his foot in a frog, and was injured. Held, that he took upon himself the risk involved in the nonblocking of the frogs, and could not maintain an action against his employer for the injury sustained. Wood v. Locke, 147 Mass. 604, 18 N. E. 578.In Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166, it is said: “When a servant, in the execution of his master's business, receives an injury which befalls him...

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11 cases
  • Mo. Pac. R. Co. v. Fox
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ...risk of any injury which he may sustain by reason of such defective appliances,”--following the rule as laid down in Railway Co. v. Baxter, 42 Neb. 793, 60 N. W. 1044. The judgment rendered in the first trial being reversed for the reason stated, a new trial was had, in which the jury retur......
  • Missouri Pacific Railway Company v. Fox
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ... ... by reason of such defective appliances," following the ... rule as laid down in Missouri P. R. Co. v. Baxter , ... 42 Neb. 793, 60 N.W. 1044 ...          The ... judgment rendered in the first trial being reversed for the ... reason stated, a ... ...
  • Malm v. Thelin
    • United States
    • Nebraska Supreme Court
    • March 18, 1896
    ...if he voluntarily enters into the employment or continues in it without complaint or objection as to the hazards. Railway Co. v. Baxter, 60 N. W. 1044, 42 Neb. 793, followed. 4. The presumption is that such risk has been assumed by the servant; and, in order to recover, the burden is upon t......
  • Malm v. Thelin
    • United States
    • Nebraska Supreme Court
    • March 18, 1896
    ...on complaint to the master, a promise was made to remove the defect and the machinery was used relying upon that promise. In Missouri P. R. Co. v. Baxter, supra, a judgment was reversed because the petition did not plead such exceptions, and in Dehning v. Detroit Bridge & Iron Works, supra,......
  • Request a trial to view additional results

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