Chi., B. & Q. R. Co. v. Bell
Decision Date | 19 February 1895 |
Citation | 44 Neb. 44,62 N.W. 314 |
Court | Nebraska Supreme Court |
Parties | CHICAGO, B. & Q. R. CO. v. BELL. |
1. The scheme of the Burlington Relief Department, organized and conducted by the Chicago, Burlington & Quincy Railroad Company and its employýes, examined and set out in the opinion, and held: (1) As said railroad company is a corporation, and no part of its charter is set out in the pleadings or evidence in the record, the court is unable to determine whether the act of the railroad company in participating in the organization and conduct of the relief department is within or without the express and implied powers conferred by its charter; (2) in the absence of all evidence on the subject, the court cannot presume such act of the railroad company is ultra vires.
2. The contract signed by an employé of said railroad company, on becoming a member of said relief department, to the effect that, if he should be injured and receive moneys from the relief fund of said relief department on account thereof, the acceptance of such relief funds should operate as a release of such employé's claim against said railroad company for damages because of such injury, construed, and held: (1) That such contract of an employé did not lack consideration to support it; (2) that the promise made by the employé to the relief department for the benefit of the railroad company was available to the latter as a cause of action or defense; (3) that such contract was not contrary to public policy; (4) that the effect of such contract was not to enable the railroad company to exonerate itself by contract from liability for the negligence of itself or servants; (5) that the employé did not waive his right of action against the railroad company, in case he should be injured by its negligence, by the execution of the contract; (6) that it is not the execution of the contract that estops the injured employé, but his acceptance of moneys from the relief department on account of his injury, after his cause of action against the railroad on account thereof arises.
3. An employé of said railroad company and a member of said relief department was injured through the negligence of the railroad company. After his injury there was paid to him, from the funds of the relief department, $60, on account of such injury. The employé accepted this money, and then sued the railroad company for damages for negligently injuring him. There was no showing that such employé was induced to become a member of said relief department, or execute said contract or release, or accept the money paid to him by said relief department, through fraud or mistake. Held, that the employé could not recover.
Error to district court, Lancaster county; Tibbets, Judge.
Action by Joseph Bell against the Chicago, Burlington & Quincy Railroad Company for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed.T. M. Marquett and J. W. Deweese, for plaintiff in error.
Sawyer & Snell and Capps & Stevens, for defendant in error.
Joseph Bell sued the Chicago, Burlington & Quincy Railroad Company, hereinafter called the “Railroad Company,” in the district court of Lancaster county, for damages. As a cause of action, he alleged that on the 13th of December, 1890, he was a switchman in the employ of the railroad company at New Castle, in the state of Wyoming; that as such switchman it was his duty to couple freight and passenger cars with the locomotive engines of the railroad company, and in order to do so to step inside the rails, and between the engine and the car to which it was to be coupled; that it had been the custom and it was the duty of the railroad company to furnish for switching purposes a switching engine, so constructed as to enable a switchman to safely pass between such engine and the car to which it was to be attached; that on the date aforesaid the switch engine of the railroad company at New Castle was disabled; that there was in the yard at New Castle at that time, belonging to the railroad company, an ordinary road engine, used between the towns of New Castle and Cambria, for the purpose of hauling heavy freight trains over the grades between said towns; that said road engine had attached to the rear end of its tender two large sand boxes, which extended out to the rear of the tender a distance of some 12 or 18 inches; that, by reason of said sand boxes being attached thereto, said road engine was wholly unsafe for switching purposes, and especially for switching of passenger coaches, all of which was unknown to Bell; that on said date the yard master of the railroad company, whose orders Bell was obliged to obey, directed him (Bell) to couple a passenger coach on said road engine; that to obey said order it was necessary for Bell to go inside the rails between said coach and said road engine; that Bell, without any negligence on his part, went between said coach and road engine for the purpose of coupling the two together, and while in the act of making such coupling the coach and road engine were pushed together, and he was crushed between the coach and one of the sand boxes attached to said engine, and injured. Among other defenses, the railroad company pleaded: Bell replied to this defense as follows: Bell had a verdict and judgment, and the railroad company brings the case here on error.
It appears from the evidence in the record that the Burlington Voluntary Relief Department, mentioned in the answer of the railroad company quoted above, and hereinafter called the “Relief Department,” is a department of the railway company's service. The object in establishing the relief department is declared to be “the establishment and management of a fund...
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...is no public policy which the contract can be said to transgress." (Italics added.) In Nebraska the question arose in Chicago. B. & Q. R. Co. v. Bell, 44 Neb. 44. 62 N. W. 314, and was thus disposed of: "The acts of Bell, in becoming a member of the Relief Department and executing the contr......
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