Atchison & N.R. Co. v. Bailey
| Decision Date | 26 May 1881 |
| Citation | 9 N.W. 50,11 Neb. 332 |
| Parties | THE A. & N. RAILROAD COMPANY, PLAINTIFF IN ERROR, v. ANDERSON BAILEY, ADMINISTRATOR ETC., DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court of Richardson county. Tried below by WEAVER, J. The action there was brought by Anderson Bailey as administrator to recover damages resulting from the death of his infant daughter, Alice N. Bailey, on account of the carelessness and negligence of the defendant company. Verdict and judgment for plaintiff in sum of $ 2,000.00, from which the defendant prosecuted its petition in error.
REVERSED AND REMANDED.
S. B Galey, Isham Reavis, and E. W. Thomas (T. M. Marquett with them), for plaintiff in error, cited, inter alia, R. R Co. v. Stout, 17 Wallace 657. Detroit & W. R. R. Co v. Van Steinburg, 17 Mich. 99. 4 Wait's Act. & Def., p. 655. Spencer v. Milwaukee, 17 Wis. 487. Greenleaf v. Ills. C. R. R. Co., 29 Iowa 14; also 4 Am. R. 181. Wolfkiel v. Sixth Av. R. R. Co., 38 N.Y. 49. Field on Damages, p. 178.
Frank Martin and C. Gillespie for defendant in error.
The court was careful in stating specifically and in detail the ingredients of legal negligence, for negligence is the product of certain proved pre-existing facts. All facts being duly found necessary to constitute the negligence, then the negligence itself is the aggregate of these facts, and the liability attaches. There was nothing in the instruction calculated to mislead the jury or prejudice the rights of the railroad company. The court could have gone much further with safety. Railroad Co. v. Breale, 73 Penn. State, 504. Shearman & Redfield on Negligence, 11. Wharton on Negligence, 420, and cases cited.
The first instruction given the jury on the trial of this cause is in the following words:
"You are instructed that if you find from the evidence that the said defendant owned and used the said turn-table in an open and exposed public place, without any enclosure or fastening or precaution whatever to prevent thoughtless children from going upon and playing with the same, and that said turn-table was a ponderous and dangerous machine calculated to induce thoughtless and meddlesome children to go upon and play with the same, and that the defendant had notice of these facts and neglected to take the necessary and proper steps to enclose, fasten, or guard the same so as to prevent children from going upon and playing with said turn-table; and if you further find from the evidence that the deceased, Alice N. Bailey, was a child of such tender years as to be incapable of exercising any discretion in the premises, and had no knowledge of the dangerous character of the said machine, and was there without any fault or negligence on her part, or on the part of the plaintiff and parents, and while so there without any fault of hers or her parents, or this plaintiff, she was so injured by said machine that she died, then the jury will find for the plaintiff, and assess his damages at such sum as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, not to exceed five thousand dollars."
In this instruction, the jury are in effect told by the court, that if they believed from the evidence that "the said defendant owned and used the said turntable in an open and exposed public place, without any enclosure or fastening or precaution whatever to prevent thoughtless children from going upon and playing with the same, and that said turn-table was a ponderous and dangerous machine calculated to induce thoughtless and meddlesome children to go upon and play with the same, and that the defendant had notice of these facts and neglected to take the necessary steps to enclose, fasten, or guard the same so as to prevent children from going upon and playing with said turntable," etc., they should find that the defendant was guilty of negligence.
In this instruction I think the court erred. There is in the testimony, to say the least of it, considerable conflict as to the situation of the turn-table with reference to its contiguity to the settled part of Falls City, as well at the time of its construction as at the time of the accident, and also in respect to other matters. I think it should have been left to the jury to find from the testimony whether, under all the circumstances, the defendant was guilty of...
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