Anderson v. Mo. Pac. R. Co.

• Decision Date: 27 February 1914
• Docket Number: No. 17,374.,17,374.
• Citation: 95 Neb. 358,145 N.W. 842
• Parties: ANDERSON v. MISSOURI PAC. R. CO. ET AL.
• Court: Nebraska Supreme Court

95 Neb. 358

145 N.W. 842

ANDERSON

v.MISSOURI PAC. R. CO. ET AL.

No. 17,374.

Supreme Court of Nebraska.

Feb. 27, 1914.

Syllabus by the Court.

That a section foreman of a railroad company, who was injured in the company's yards, was in a state of intoxication at the time is evidence of contributory negligence.

Where the foreman of a gang of section men employed by a railroad company is found in the company's yards in disobedience of the orders of his superior officers, the company owes him no other duty than not to purposely or wantonly injure him.

Where a section foreman is supposed by his superior officer to be intoxicated, and is ordered by him to go home and stay there, and in disobedience to such orders afterwards returns to the company's yards in an unfit condition to work, and attempts to take charge of the section men, he becomes a mere volunteer or trespasser, and if injured the Employers' Liability Act (Laws 1913, c. 198) affords him no grounds for recovery.

An engineer operating his engine in the yards of a railroad company has a right to assume that the section men in the yards will take notice of and look out for moving trains, and no duty or obligation rests upon the engineer to assume that they will not get out of the way of such trains.

The doctrine of the last clear chance has no application to the case where a section foreman in a railroad company's yards suddenly goes upon the track in front of a moving engine and train of cars, at a point so near the engine that it was impossible to stop and avoid injuring him.

Appeal from District Court, Douglas County; Sutton, Judge.

Action by Johanna M. Anderson, administratrix of estate of Carl A. Anderson, deceased, against the Missouri Pacific Railroad Company and others, for death of plaintiff's husband. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Reese, C. J., dissenting.

B. P. Waggener, of Atchison, Kan., E. M. Morsman, Jr., and J. A. C. Kennedy, both of Omaha, for appellants.

W. W. Slabaugh and J. W. Battin, both of Omaha, for appellee.

BARNES, J.

The plaintiff, as administratrix of the estate of her deceased husband, Carl A. Anderson, brought this action to recover damages for his death, which she alleged was caused by the joint negligence of the defendant the Missouri Pacific Railway Company, and the engineer in charge of the locomotive, which struck and killed him. By their answers defendants admitted the allegations of the petition setting forth the representative capacity of the plaintiff; the corporate character of the defendant; that it owned and operated the engine and train of cars referred to in the petition; that plaintiff's decedent was struck by the defendant's engine and received injuries from which he died. All of the other allegations of the petition were denied, and it was alleged that the plaintiff's decedent was not in the defendant's employ at the time he received his injury, but had been discharged prior thereto, and at the time he was injured Anderson was a trespasser, was intoxicated and under the influence of liquor, and stepped directly in front of defendant's moving train, thereby receiving the injuries resulting in his death. The reply put in issue the averments of the answer. The cause was tried to the district court of Douglas county and a jury, and a verdict was returned against both defendants for $9,999. Motions for new trials were overruled, a judgment was entered upon the verdict, and both of the defendants have appealed.

It appears that the defendant railroad company owns large yards and terminals in Omaha located in the northern part of the city, and extending northward from what is called Webster street station for the distance of more than a mile. There are four tracks, one of which was known as the main passenger track, another as the roundhouse track, and the other two as holding or switch tracks, near and parallel to each other in the defendant's yards. Plaintiff's decedent was foreman of a gang of men who had charge of that part of the defendant's yards lying between Locust street and the Webster street station, and it was his duty, with the help of his gang, to keep the tracks in condition in that part of the yards. The tracks north of Locust street were under the care of another foreman, who had his own gang of men. In addition to the two gangs just mentioned, there was present, at the time of the accident, a third or extra gang in charge of a separate foreman. Anderson was hired by, and directly subject to, the orders of defendant's roadmaster, J. L. Buzzard, who was in charge of the Omaha yards and terminals, having full power to hire and discharge the section men. On the evening of the 30th day of December, 1909, the rails of the main track at a point a short distance north of the Webster street station spread, thereby derailing a couple of freight cars. This derailment blocked the main line, and compelled passenger trains going between the yards and the station to use the roundhouse track for the purpose of passing the derailment. Ordinarily it would have been Anderson's business to take his gang to the place of the derailment, and repair the main track after the cars had been removed therefrom by the wrecking crew; but roadmaster Buzzard had his attention called to the fact that Anderson was intoxicated, and specifically ordered him to go home and keep away from the work. He sent a Mr. Grandinett, Anderson's assistant and his gang, to the place of the derailment to repair the main track. E. C. Ciol, sometimes called “Rugge,” was the foreman of the extra gang, and when Buzzard sent Anderson home he superseded his authority and put all of the men in charge of the foreman of the extra gang.

It appears from the testimony that when Anderson was ordered to go home he started in that direction, and was not seen again by the men at the place where they were working until a short time before he was injured. The two gangs of men sent to repair the main track worked by torchlight. About 8 or 9 o'clock Anderson turned up and attempted to again boss the job. There is evidence in the record from which it appears that he was badly intoxicated, while it is shown by other evidence that he might have been sick. In any event, he was not in his natural or normal condition. Buzzard was not then present, and never saw Anderson after giving him his orders to go home. About 9 o'clock the regular passenger train came down the roundhouse track to the station, and as it passed the point where the men were working on the main track Anderson got in front of the moving train and was injured so badly that he died about three hours later. Defendant Peter Gannon was the engineer in charge of the engine which struck Anderson, and, together with the railroad company, he was made a party defendant to this suit. The accident occurred in the yards and upon the private property of the defendant, the Missouri Pacific Railway Company.

[1] It is contended that the trial court erred in giving the tenth paragraph of his instructions to the jury. By this instruction they were told that intoxication of itself did not constitute negligence on the part of Anderson, but if the jury believed Anderson was under the influence of liquor, and if they further found that such condition was the cause of his remaining about the yards, or was the cause of his getting upon the track, then such condition of intoxication was a matter to be taken into account in determining whether or not the injury resulted from the negligence of the deceased. It appears that Anderson was notified of the derailment, and instructed to act immediately. He was at the scene of action and undertook to direct the men, when his superior officer, the roadmaster, came and ordered him to go home. He testified that Anderson was intoxicated, and he told him to go home and stay there; that he was not fit to attend to the work. Several witnesses testified to having heard this order, and that Anderson at the time was drunk. The plaintiff claims that a question of fact was raised as to whether Anderson was drunk, and her brief refers to evidence in the record to show that there was a conflict of the testimony upon that point. The evidence that the plaintiff relied upon was the cross-examination of the defendant's witnesses. One witness, after testifying that Anderson was drunk, was asked upon cross-examination whether it was not possible that Anderson was sick and overworked that made him act as he did; and the witness answered that he thought that was possible. This is the kind of evidence by which plaintiff sought to prove that Anderson was not drunk. If Anderson was sick, or for any reason acted like an intoxicated man, and the roadmaster thought he was drunk, and told him that he was not fit to work, to go home, and thereupon put another man in Anderson's place, who took charge of the work, it would make no difference whether Anderson was really drunk or was sick. If the roadmaster thought he was drunk and others also thought so, he should have gone home and stayed there as directed by the roadmaster. It is argued, however, that he was not discharged, and was still in the employ of the defendant. Of course his discharge was not complete until he was given his time and pay. He was still technically an employé of the railroad company, but this does not help the plaintiff's case. It was supposed by the roadmaster that Anderson was not in a condition to be in such a dangerous place, and he was ordered home. If he was an employé, he disobeyed orders that were wholesome and were necessary for his own protection, and it makes no difference whether he was intoxicated or was sick. If the jury believed that he was intoxicated, that was evidence of negligence on his part; for it may well be said that if an intoxicated person enters a railroad yard, where trains are constantly running in all directions and upon different tracks, and is injured, his...