Burlington & M. R. R. Co. v. Crockett

• Decision Date: 11 February 1886
• Citation: 26 N.W. 921,19 Neb. 138
• Parties: BURLINGTON & M. R. R. CO. v. CROCKETT.
• Court: Nebraska Supreme Court

19 Neb. 138

26 N.W. 921

BURLINGTON & M. R. R. CO.

v.CROCKETT.

Supreme Court of Nebraska.

Filed February 11, 1886.

Error from Lancaster county.

Marquette & Deweese, for plaintiff.

Sawyer & Snell and J. R. Webster, for defendant.

MAXWELL, C. J.

An opinion was filed in this case at the last term of the court, judgment being reversed for want of a material allegation in the petition. Afterwards the parties entered into a stipulation that the petition be amended, and the cause again submitted, either party to have leave to file an additional brief. The action is brought by the plaintiff, the mother of Clayborn Crockett, as administratrix of his estate, to recover damages for his death, caused by the caving of an embankment at a gravel pit where he and others were at work for the railroad company. The plaintiff below (defendant in error) claims to have established two propositions by the evidence, which she alleges are sufficient to sustain the verdict: First, that Crockett was under the control of one Wyatt, and was ordered by him to shovel out a certain car near the embankment, which car had been partially covered up and derailed by a fall of earth; and, second, that it has been customary to place a watch at or near the bank, to give warning when it was apparent that it was about to fall, which precaution was omitted on this occasion. It is contended on behalf of the plaintiff in error that neither of these propositions is supported by the evidence. This will require an examination of the testimony.

It appears from the testimony that for some months prior to November 18, 1881, when the accident occurred, Clayborn Crockett had been in the employ of the railroad company as under-boss of the shovelers of a gravel train, which at the time of the accident was being loaded with gravel at an embankment near Milford, to be carried to Lincoln; that an ordinary day's work was 60 cars, which required three trips; that the embankment in question is about a mile and a half east of Milford, and on the south side of the track, and is reached by a spur or side track from the main line, the bank at the highest place being from 20 to 30 feet in height; that on the day the accident occurred a number of the hands were absent,--the exact number does not appear,--and there seems to have been an attempt on the part of the conductor (Wyatt) to accomplish the usual amount of work; that before noon there was a fall of earth from a high part of the bank, which struck one of the flat cars, and partly buried it, and threw one end off the track.

The attorney for the plaintiff in error who argued the case insists that there is no evidence to show that Wyatt ordered Crockett to shovel out the car and get it on the track.

One Jerry Wilson testified (page 7) as follows: “State to the jury if you know how Clayborn came to go there to unload that car. Answer. It was a custom when we got in a pinch for Mr. Wyatt to help us out. Question. This Wyatt was in charge of the train? A. Yes. Q. And Clayborn had charge of the men? A. Yes; Mr. Wyatt was a piece off, getting a tie to bear the car on the track, when it fell. Q. How far off had he gone? A. Fifty or a hundred yards. When he started away he said to Clayborn: ‘Go and get that car out as quick as you can.’ He always said to Clayborn: ‘Go and do so and so.’ ”

One Calvin J. Montgomery testifies, (page 9:) “After that bank had fallen, in the morning, the same day John Wyatt (six or seven of the cars were loaded) told Clayborn to take those men and go there and clear up the tracks and get the cars ready by the time the Milford train came. Clayborn did so, and he worked there till dinner. After dinner we came back, and he said to go and take some men and go back and clear the tracks. He was digging under the tracks, and the bank caught him in this way. [Witness illustrates the position.] The bank was on the south side and the track on the north side. Before dinner we did not finish clearing out. After dinner he (Wyatt) told him to take some of the men and clear it, and he would go and get a tie. He (Wyatt) went to the tool-box and got a tie, and had it on his shoulder, and before he got back the accident occurred.”

S. Black testified (page 13) as follows: “ Question. What happened to one of the cars that day? Answer. The bank had fallen down on it, and knocked one end of the car off the track. Q. What was being done that day? A. Dug out part of it. Q. Who dug it out? A. The men working for Crockett. Q. How did it come that these men and Crockett were digging it out? A. Wyatt told them to.”

Joseph Carter testified, (page 16:) “In the forenoon there was a part of the bank fell down, and broke the brake, and then we were shoveling that out so that we could get the train out at the usual time. Question. Who told you to shovel out that car? Answer. Wyatt. Q. Whom did he tell? A. All of us. Q. Did he tell any particular person? A. He told Mr. Crockett.”

J. Mitchell testified, (page 19:) “ Question. You may tell the jury who were at work there at the car next to the bank when the accident happened at the time. Answer. Myself, this Mr. Crockett,--he was in the center of the car next to the bank,--and there was another man, Robert Reed. We were the only three men engaged in there at that time. The rest of the men were loading up the other cars. Q. How did you come to load up that car? A. There were four or five more cars below that had been loaded. This car, we commenced loading it in the morning. It was very cold that morning. We did not finish loading it, because about eleven o'clock the bank caved in there, and had knocked it partially off the track, and broke the brake-wheel. In the afternoon, when the men were called out and had gone to work, Mr. Wyatt, I believe, gave orders to some of them to finish loading the car, and none of them would agree to load it except us two men. They were afraid that the bank would cave again, but myself and another man and Mr. Crockett were at the upper end of the car, and Mr. Wyatt was down there, and he left our car and went to Crockett. I don't know what he said. Anyhow, Crockett came down and pitched in. * * * Deweese. You did not hear what he said to Crockett? A. No; he came down immediately, and he was engaged in helping us load that car. We had been loading it, I believe, for three-quarters of an hour before the bank caved in. Q. The second time? A. Yes; that was the second time.”

Mr. Wyatt, called as a witness by plaintiff in error, testified on cross-examination as follows, (pages 30, 31:) “ Question. At the time of this accident where were you when the first fall of dirt occurred on that day? Answer. I was about two cars from the men when the dirt fell. Q. What direction? A. I was west. Q. What were you doing? A. Carrying water around for the men. Q. Then what did you do when the dirt fell? A. I don't remember that I did anything in particular. Well, I moved a part of the men from the other...