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

• Decision Date: 18 October 1893
• Citation: 56 N.W. 794,38 Neb. 112
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. ANDERSON.

38 Neb. 112

56 N.W. 794

CHICAGO, B. & Q. R. CO.

v.ANDERSON.

Supreme Court of Nebraska.

Oct. 18, 1893.

Syllabus by the Court.

1. The entries upon the journal of the district court are conclusive evidence of its proceedings. If the clerk has not made such entries in conformity with the facts or the rulings of the judge, the remedy is by a correction of the journal by order of the district court. This court will not substitute a paper certified to be a memorandum of journal entry prepared by the judge for the journal entry itself as it appears in the transcript filed in this court, and certified to be a true transcript of the record.

2. An instruction is erroneous which assumes a fact as established which is material to the case, and as to the existence of which the evidence is conflicting.

3. The giving of instructions which are vague and conflicting, and which probably had the effect of confusing and misleading the jury, is erroneous, and the fact that the general tenor of the instructions is more favorable to the unsuccessful party than to the successful one does not cure the error.

Commissioners' decision. Error to district court, Custer county; William Gaslin, Judge.

Action for personal injuries by Niles Anderson against the Chicago, Burlington & Quincy Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.Marquett & Deweese and J. S. Kirkpatrick, for plaintiff in error.

R. A. Moore and H. M. Kidder, for defendant in error.

IRVINE, C.

The defendant in error was a section man in the employ of the plaintiff in error, and on the evening of November 21, 1890, was engaged, together with one Bingham, the “section boss,” and one Dunlap, a road master, in loading three railroad rails upon a flat car at the station of Mason, in Custer county. While loading the rails, one of them, while being lifted upon the car, fell back in some manner, and struck the hand of defendant in error, injuring it quite severely. This action was begun by defendant in error to recover damages for the injuries so sustained, and resulted in a verdict and judgment in his favor for $1,490. The facts are, for the most part, undisputed. Bingham was the “section boss,” with authority to employ and discharge section men, and the plaintiff below had, in fact, been employed by him, and was under his direction and subject to his orders. Dunlap was the road master, but his authority and powers do not appear from the evidence. During the day three rails had been placed upon the platform in front of the station for the purpose of loading them upon a freight train due in the course of the afternoon. The train was late, and did not arrive until after dark. Anderson, by Bingham's orders, had remained at the station after the usual working hours had passed, for the purpose of assisting in loading the rails. The car upon which the rails were to be loaded was next to the caboose at the west end of the train. It stopped opposite to the platform, upon which, at some point not clearly shown, but near the car, was placed a brakeman's lantern. There is evidence tending to show that there was a light in the window of the station at some distance from the car. A stake was placed in a socket near the east end of the flat car. Anderson, Bingham, and Dunlap proceeded to load the rails by first raising the east end of each upon the car, and then shoving the rail so that the end would be guarded by the stake. They would then go to the west end of the rail, lift up that end, and, upon a given signal, throw that end of the rail upon the car. Dunlap directed that the rails should be loaded; Bingham had supervision of the process of loading. It seems that two rails had been loaded in this manner, the east end of the third rail placed upon the car and shoved past the stake, and the three men proceeded to raise the west end. In doing so Anderson stood furthest east, and both Bingham and Dunlap were nearer the west end and the caboose. The rail was raised, the signal given, and the rail thrown towards the car. In some manner it rebounded, striking Anderson's hand. Plaintiff's theory was that the rail had not been pushed far enough, so as to permit the west end to pass upon the flat car without striking the caboose; that it was Bingham's duty to see that it was in a safe position to throw; that he was so situated that he could see whether or not the rail, when thrown, would pass free of the caboose; that he failed to do so, and that the rail when thrown did strike the caboose, and the accident was thereby caused. The plaintiff swears that the west end of the rail did strike the caboose, but in cross-examination it is shown that his only reason for saying so is that it is only upon that theory he can account for the accident, and that the statement was not based upon actual...