Chi., B. & Q. R. Co. v. Clark

• Decision Date: 31 May 1889
• Citation: 42 N.W. 703,26 Neb. 645
• Parties: CHICAGO, B. & Q. R. CO. v. CLARK ET AL.
• Court: Nebraska Supreme Court

26 Neb. 645

42 N.W. 703

CHICAGO, B. & Q. R. CO.

v.CLARK ET AL.

Supreme Court of Nebraska.

May 31, 1889.

Syllabus by the Court.

1. Where a petition charged several defendants jointly with operating a railroad construction train in a negligent and careless manner by negligently running it at a high rate of speed through and by a herd of cattle which were near the track over which the train was passing, whereby a part of the cattle which came onto the track were run over, and the train derailed and thrown from the track, and by which the plaintiff, who was riding thereon, was injured, it was held that the district court did not err in overruling a motion to require a more specific statement in the petition by showing which one of the defendants was operating the road, if either one, or, if all, whether jointly or severally, which one employed the trainmen, and which was charged with the alleged negligence.

2. It is not necessary to the admissibility of the testimony of a witness as to the rate of speed a train of cars was running at the time of an accident that such witness should be an expert in the matter of the speed of trains. Any person of sound mind and judgment, who has observed trains running, or other objects in motion, and who has an opinion thereon, based upon seeing the train at the time in question, is a competent witness upon the subject, the jury being the judges of the weight of his testimony.

3. In such action it was held not to be error for the trial court to permit the introduction of evidence tending to show the unsafe condition of the track at the place where the accident occurred, as tending to prove negligence on the part of those in charge of the train.

4. An instruction in a case of the kind referred to, that it was negligence on the part of those in charge of the train to run it at full speed over any part of the track known by them to be frequented by cattle, unless that part of the track was guarded, held error.

5. Where a contractor undertook to lay the track upon a newly-constructed railroad for the railroad company owning or leasing the same, the company to furnish the construction train, and the men necessary to operate it, they to be employed and paid by the company, and to whom alone they are responsible while running the train, the contractor having no authority to control them in that behalf, it was held that if, by the carelessness of those in charge of the train while passing over the track, an employé of the contractor, lawfully on the train, and without fault or negligence on his part, was injured, the railroad company owning and controlling the movement of the train would be liable for the damages sustained.

Error to district court, Lancaster county; FIELD, Judge.Marquette & Deweese, for plaintiff in error.

Pound & Burr, G. M. Lambertson, and Sawyer & Snell, for defendants in error.

REESE, C. J.

These several causes were instituted in the district court of Lancaster county against plaintiff in error. The issues were formed separately, but when they were called for trial they were consolidated and tried as one case; the jury returning separate verdicts in each case, which were all in favor of defendants in error and assessing to each the damages found due them. A motion for a new trial was filed and upon the same being overruled judgment was rendered. The causes as consolidated are now brought to this court by proceedings in error. The issues formed in the district court were substantially the same in all the cases, and may be briefly stated as follows: The actions were all against the Nebraska & Colorado Railroad Company, and John Fitzgerald and the Chicago, Burlington & Quincy Railroad Company as defendants. It was alleged in the petition that the Nebraska & Colorado Railroad Company was a corporation duly organized under and by virtue of the laws of the state of Nebraska, and that the defendant John Fitzgerald was the railroad contractor, and a resident citizen of the state of Nebraska; and that the Chicago, Burlington & Quincy Railroad Company was a corporation duly organized and existing under the laws of the state of Illinois. That said defendants, on the 19th day of October, 1886, were engaged in the construction and completion of a railroad, and the plaintiffs were employed by the defendant Fitzgerald at an agreed price of $1.75 per day in laying track from the terminus mentioned into the station of Lawrence. That the said defendants were possessed of the locomotive, tender, and train of cars thereto attached, of about 16 in number, and at the time of the injuries complained of the railroad company referred to had in its employ and in charge and control of its train of cars a conductor, engineer, firemen, and two brakemen, who were running the train from about one mile from the said station of Lawrence to the station of Deweese, at a high and dangerous rate of speed, and at not less than 30 miles per hour. Some of the cars were flat, some of them box-cars, and one water-car, one engine and tender; and which train was carelessly and negligently made up for that trip by said agents, servants and employés of the said railroad company, by running the engine backwards, and by placing the said engine in the middle of the train, with about 10 cars in front of said engine, and about 6 cars in the rear thereof, and with a box-car in front, towards the said station of Deweese, with no cow-catcher on in front of the train, and while carelessly and negligently running the train at the great rate of speed mentioned, by the wrongful act, neglect, and fault of defendants, while they were engaged in managing and conducting the business of the said defendants, and without fault on the part of the plaintiffs, ran into a herd of cattle near a high bridge, and the cars and all thereon in front of the engine were thrown down upon the ground below, a distance of about 20 feet, and by reason of which the plaintiffs were greatly injured, etc. The defendants in the action filed their motion for a more specific statement of the cause of action in the following particulars: (1) To show which one of the defendants was in possession of the railroad mentioned in the petition at the time complained of, or, if all were in possession of it, whether they held it jointly or severally. (2) Which one of the defendants was possessed of the locomotive, tender, and train of cars, and, if all were posssssed of them, whether jointly or severally. (3) State which one of the railroad companies had in its employ the conductor, fireman, engineer, and brakemen referred to in the petition. (4) To require the plaintiffs, when they state that the said railroad company was negligent through its agents and servants, to state which one of the railroad companies was referred to. (5) To require plaintiffs, when they state that the employés of said railroad company, or one of them, had charge and control of the said engine and train of cars, to state which railroad company was meant. This motion was overruled. The cause being presented on error...