Chi., B. & Q. R. Co. v. Kellogg
| Decision Date | 23 September 1898 |
| Citation | 76 N.W. 462,55 Neb. 748 |
| Court | Nebraska Supreme Court |
| Parties | CHICAGO, B. & Q. R. CO. v. KELLOGG. |
1. The essential elements of a petition charging actionable negligence are that the plaintiff, without fault on his part, has sustained an injury as the proximate consequence of a specific negligent act or of the omission of the defendant.
2. An averment in a petition that the defendant negligently permitted a certain appliance to become defective, and negligently suffered it to remain in a defective condition, implies that he knew or was culpably ignorant of the defect.
3. Where a servant sues his master on account of injuries resulting from the use of a defective tool or appliance, the fact that the accident happened cannot be taken as evidence of the master's negligence.
4. To entitle the plaintiff to a verdict in such case, he must affirmatively show that the defendant either knew or was inexcusably ignorant of the defective condition of the implement or appliance causing the injury.
5. In an action to recover for injuries caused by defective appliances, an instruction that it was the “duty of the defendant to exercise reasonable care in keeping such machinery and appliances in a reasonably safe condition for use” does not place the burden of proof on the defendant.
6. A party desiring to take advantage of the misconduct of opposing counsel in the argument of a case should seasonably object to the remarks complained of, and then enter an exception if the court rule adversely or refuse to make a ruling.
7. But where the misconduct of counsel is so flagrant, and of such a character, that neither a complete retraction nor any admonition or rebuke from the court can entirely destroy its sinister influence, a new trial should be awarded, regardless of the want of an objection and exception.
8. Evidence examined, and damages held to be excessive.
On rehearing. Affirmed on condition.
For former opinion, see 74 N. W. 454.
This cause is now before us on rehearing. The original opinion, which contains a sufficient statement of the facts, will be found in 54 Neb. 127, 74 N. W. 454. Counsel for defendant contended on the first submission, and still insist, that the petition does not charge the company with actionable negligence. This contention is grounded on the fact that there is in the petition no avermentthat the defendant knew, or ought to have known, of the defective appliance which was responsible for the accident. That knowledge, or inexcusable ignorance, on the part of the defendant, is an essential element in the plaintiff's right of action, cannot be doubted. If there was neither actual nor constructive notice, the defendant was blameless, and the plaintiff has no claim on it for indemnity. But it must be remembered that in pleading negligence it is not necessary to set out the evidential facts. An allegation that an injury has resulted from a specific negligent act or omission of duty on the part of the defendant, without fault on the part of the plaintiff, is a sufficient statement of facts to support a judgment. Railroad Co. v. Wright, 49 Neb. 456, 68 N. W. 618;O'Connor v. Railway Co., 83 Iowa, 105, 48 N. W. 1002; Railroad Co. v. Utz (Ind. Sup.) 32 N. E. 881.
The averment of the petition that the defendant negligently permitted the brake rod to become defective, and negligently suffered it to remain in a defective condition, carries a necessary implication that the company either knew, or should have known, of the defect. In the case of Crane v. Railway Co., 87 Mo. 588, it is said that “the allegations in the petion that the injury was caused by the negligence of the master in failing to provide safe appliances, and stating particularly the defect,” is equivalent to a specific allegation that the master knew, or might have known, of the defect. It is claimed that the former opinion proceeds on the assumption that proof of the accident was prima facie sufficient to entitle the plaintiff to a verdict, and that the burden of disproving the alleged negligence was on the defendant. The law on the subject is clearly and accurately stated in the case of Railroad Co. v. Ryan, 52 Kan. 637, 35 Pac. 292, as follows: “It has been frequently ruled by this court, in accordance with the authorities generally, that an employé of a railroad company, by virtue of his employment, assumes all the ordinary and usual risks and hazards incident to his employment; that, as between a railroad company and its employés, the railroad company is not an insurer of the perfection of any of its machinery, appliances, or instrumentalities for the operation of its railroad; that, as between a railroad company and its employés, the railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employés reasonably safe machinery and instrumentalities for the operation of its railroad; that it will be presumed, in the absence of anything to the contrary, that the railroad company performs its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has not performed its duty; that, where an employé seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employé to prove such insufficiency, but it will also devolve upon him to show, either that the railroad company had notice of the defects, imperfections, or insufficiencies...
To continue reading
Request your trial