Carnahan v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 22 December 1917 |
| Docket Number | 19666 |
| Parties | JAMES R. CARNAHAN, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Holt county: ROBERT R. DICKSON JUDGE. Affirmed.
AFFIRMED.
Byron Clark, Jesse L. Root, J. W. Weingarten, L. C. Chapman and F S. Howell, for appellant.
J. J Harrington and M. F. Harrington, contra.
Plaintiff in December, 1914, was a section hand in the employment of the defendant, which is an interstate carrier, and this is an action under the federal employers' liability act. 35 U.S. St. at Large, ch 149, p. 65. He was under the immediate control of one Tegner, section foreman. He was injured while attempting to lift and pull a hand-car onto the rails. The allegations of negligence are: (1) That the hand-car was in an unsafe condition, that the wheels bound, that the hind axle was lower than the front one, and that the car was generally dilapidated, shaky, unsafe and unsound. (2) That the car weighed more than 1,000 pounds and reasonably required at least three men to handle and lift it; that defendant negligently failed to have at least three men, but attempted to operate it with only two men, the plaintiff and the foreman; that plaintiff had complained of the condition of the car, and that defendant, by its foreman, had promised that if he would continue to use the car for a few days defendant would procure an additional man and would furnish a new hand-car; that plaintiff relied on the promises and continued to work for a few days thereafter until he was injured. (3) That while plaintiff and the foreman were lifting and pulling the hand-car, trying to get it upon the track, Tegner, having hold of the hand-car at one corner, "carelessly, negligently and wrongfully and suddenly and without notice or warning to plaintiff gave a sudden, quick lift to said car," and suddenly cast upon the plaintiff a great and unusual weight, which he was unable to sustain or hold, which caused him to fall and injured his back and spine.
The answer admits that plaintiff was in its employment as a section hand, and that Tegner was his foreman; that in November, 1914, while the plaintiff was assisting in placing the hand-car upon the track, the plaintiff slipped, fell and sustained some slight injuries thereby; and avers that plaintiff assumed the risk, and that the injury was caused by his own carelessness.
Plaintiff recovered a verdict for $ 8,000. A remittitur of $ 2,000 was filed and judgment rendered for $ 6,000.
Defendant has assigned 57 errors, but these may be considered in groups.
Did plaintiff assume the risk of injury from the defective hand-car? In Seaboard A. L. Co. v. Horton, 233 U.S. 492, it is held that under the federal employers' liability act, 35 U.S. St. at Large, ch. 149, p. 65, when an appliance is not included in a federal statute enacted for the safety of employees, the common law with reference to the assumption of risk from injury from a defective appliance applies. In Jacobs v. Southern R. Co., 241 U.S. 229, 60 L.Ed. 970, 36 S.Ct. 588, the common-law rules are restated, and it is said that an employee who, after having complained and obtained a promise of reparation, relying upon the promise, continues to work a reasonable time, does not assume the risk, unless it was so imminent that no ordinarily prudent man under the circumstances would rely upon such promise.
The evidence does not justify holding as a matter of law that the plaintiff assumed the risk, and the cases of Malm v. Thelin, 47 Neb. 686, 66 N.W. 650, and Thompson v. Missouri P. R. Co., 51 Neb. 527, 71 N.W. 61, cited by defendant, are not in point. The evidence is not disputed that the hand-car was badly out of repair; that a short time before the accident the axle of the rear wheels had broken, and it had become necessary to substitute a truck from a push-car, the wheels of which were lower than those of the hand-car. This prevented the perfect meshing of the cogs of the propelling or bull-wheel, caused the wheels to bind and not run true, and affected the running of the car both on the rails and when on the ground. The jury might well find from the evidence that this defect on the car concurred with the violent action of the foreman in producing the accident. It seems also clear that, while two men could lift one end of this car and pull it on and off the rails, it was only by the exercise of nearly all their strength, and that if a third man had been lifting at the other end, as the custom was when three men were employed, the accident would not have happened.
It is insisted that the court erred in permitting evidence to the effect that the plaintiff had complained of the unsafe condition of the hand-car before the injury, and that the foreman told him he had a hand-car ordered and was expecting the hand-car every day; that he also said he had the privilege of putting on another man and was expecting to get one every day; that plaintiff relied upon these promises, and would have quit work if they had not...
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