Bocian v. Union P. R. Co.
| Decision Date | 20 December 1939 |
| Docket Number | 30700. |
| Citation | 289 N.W. 372,137 Neb. 318 |
| Parties | BOCIAN v. UNION PAC. R. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The law that permits a conductor on a passenger car to make a reasonable assault upon a dangerous person, when necessary for the protection of passengers, does not apply to a wrongful assault by the foreman of a railroad section crew upon a member thereof.
2. Under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., an interstate railroad carrier is not liable in damages for an assault by a section foreman upon a member of the section crew, unless the negligent or wrongful act was committed within the scope of the foreman's employment or directed or authorized by the carrier.
3. In the administration of the Federal Employers' Liability Act, pertinent opinions of the federal courts are binding on state courts.
4. Under the Federal Employers' Liability Act, liability of an interstate carrier is not created by conduct of the wrong doer, if impelled by motives that are wholly personal to him or to gratify his own feelings of resentment.
5. Under the Federal Employers' Liability Act, the burden of proving an actionable injury resulting in whole or in part from the negligence of any of the officers, agents or employees of an interstate carrier, while the wrong doer was acting within the scope of his employment, is on a plaintiff who claims damages as the proximate cause of such negligence.
6. Correct instructions to the jury do not cure prejudicial error in other misleading and contradictory instructions on the same issue.
Appeal from District Court, Colfax County; Lightner, Judge.
Action under the Federal Employers' Liability Act by Daniel Bocian, employee, against the Union Pacific Railroad Company employer, and others. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment reversed, and cause remanded for further proceedings.
T. F Hamer, of Kearney, W. J. Schall, of Omaha, W. B. Sadilek, of Schuyler, and G. C. Holdrege, of Omaha, for appellants.
Wagner, Wagner & Albert, of Columbus, for appellee.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and FALLOON, District Judge.
This action was brought under the Federal Employers' Liability Act, making an interstate railroad carrier liable to an employee for an injury " resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier," if the negligent act is committed within the scope of the wrong doer's employment or directed or authorized by the carrier. 45 U.S.C.A., ch. 2, sec. 51.
Plaintiff, Daniel Bocian, was employee. Defendant, Union Pacific Railroad Company, was employer. Plaintiff was a member of a section crew engaged in repairing defendant's railroad track near Rogers in Colfax county. John Demos was defendant's section foreman. He assaulted plaintiff April 11, 1938, and shoved him off the shoulder of the railroad track at about 2:30 p. m. into a ditch, where he was allowed to remain without attention until evening. After the assault plaintiff had a hernia in the scar of a former appendectomy.
Plaintiff alleged in his petition that the assault was com mitted within the scope of the foreman's employment; that the foreman was a person of violent temper and vicious character and disposed to assault men under him in order to induce them to work faster, facts within the knowledge of defendant; that the assault was made for such purpose; that as a result of the assault plaintiff was totally disabled and suffered great physical pain and mental anguish; that the injuries were permanent. There was a prayer for judgment in the sum of $2,990.
In the answer to the petition it was admitted that defendant was an interstate carrier; that John Demos was foreman of the section crew April 11, 1938; denied that plaintiff's injuries were caused by an act of defendant, its agents, servants or employees; alleged injuries of plaintiff were caused by his own acts. The reply to the answer was a general denial.
Upon a trial of the cause there was a verdict in favor of plaintiff for $2,500. From judgment therefor defendant appealed.
On appeal the verdict is challenged as being without support in the evidence, and instructions by the trial court to the jury are criticized as erroneous and prejudicial to defendant.
There is testimony tending to prove the following facts: It was the duty of Demos, the foreman, to keep the tracks in his section in proper repair for railroad purposes. He had authority to direct all other members of the crew in the performance of their duties and to employ and discharge section hands.
While there is testimony to the effect that, in addition to the assault on plaintiff, the foreman previously threw a bucket at another employee, the evidence is wholly insufficient to sustain a finding that, within the knowledge of defendant, the foreman was at the time of the assault a person of violent temper and vicious character and disposed to assault men under him to induce them to work faster, as alleged in the petition.
The law that permits a conductor on a passenger car to assault a dangerous person, when necessary for the protection of passengers, as pointed out in Zaitz v. Drake-Williams-Mount Co., 107 Neb. 262, 185 N.W. 424, has no application to the present controversy.
The evidence proves that the foreman assaulted plaintiff and thereafter directed other members of the crew to pay no attention to him. Through inhuman cruelty, plaintiff was left for hours after the assault on damp ground in a ditch at the side of the railroad track. There is an entire absence of proof that Demos was authorized or directed by defendant to assault a member of the crew for any purpose.
The law is that an interstate carrier, under the Federal Employers' Liability Act, is not liable in damages for such an assault unless it was committed by the wrong doer within the scope of his employment or directed or authorized by the employer. Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Allertz v. Hankins, 102 Neb. 202, 166 N.W. 608, L.R.A. 1918F, 534; Zaitz v. Drake-Williams-Mount Co., 107 Neb. 262, 185 N.W. 424.In the administration of the Federal Employers' Liability Act, pertinent opinions of the federal courts are binding on state courts. Sullivan v. Chicago & N.W. R. Co., 128 Neb. 92, 258 N.W. 38.
A vital issue in the case at bar was whether the foreman made the assault while acting within the scope of his employment. Plaintiff had been in the employ of defendant at different times for several years. On the afternoon of the assault the members of the crew were at work on defendant's railroad track at or near a private crossing not far from Rogers.
In testifying, plaintiff was hampered by failure to understand the English language and his handicap was not entirely overcome by the aid of an interpreter, but he testified in effect that, as directed by Demos, the foreman, he was at...
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