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

• Decision Date: 30 June 1891
• Citation: 49 N.W. 362,32 Neb. 306
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. BERNARD.

32 Neb. 306

49 N.W. 362

CHICAGO, B. & Q. R. CO.

v.BERNARD.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

1. Held, that the evidence does not tend to show that the death of the plaintiff's intestate was caused by the negligence of the defendant.

2. When, in a case tried to a jury, there is no conflict in the evidence, and no inferences, about which reasonable men might differ, to be drawn from the facts and circumstances proved, the court may direct the verdict which shall be returned.

Error to district court, Gage county; BROADY, Judge.

Action by one Bernard, administrator of James Persinger, against the Chicago, Burlington & Quincy Railroad Company, for negligent killing. Judgment for plaintiff. Defendant appeals. Reversed.T. M. Marquett, J. W. Deweese, and Hazlett & Bates, for plaintiff in error.

Geo. B. Everitt and Hugh J. Dobbs, for defendant in error.

NORVAL, J.

This is an action for damages by reason of the death of James Persinger, the defendant in error's intestate, caused by the alleged negligence of the railroad company. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed the damages at the sum of $5,000. From the judgment entered upon the verdict the defendant brings the case to this court by proceedings in error. The principal question we are called to pass upon is whether there was any testimony in the case tending to sustain the verdict and judgment. It appears from the record that on the night of December 9, 1888, James Persinger left Lincoln on his first trip as a brakeman on the plaintiff in error's stock train, running between that place and Omaha. The train was pulled by two engines, and arrived at the station-house, near South Omaha, on the morning of December 10th, about 6 o'clock. At this place there is a side track, which was used for setting out cars, and for running cars to the South Omaha stock-yards. East of the station-house 385 feet is a bridge built over the Belt-Line Railroad. This bridge is 422 feet long, 18 feet above the gound at one end, and 30 feet at the other, and is a part of the company's main line. The bridge was not floored between the tracks, and had no railings or protection of any kind for a person standing or walking thereon. Persinger was the head brakeman, whose place was upon top of the cars near the front of the train, to give signals to the engineer, and help set the brakes. J. W. Moore was the rear brakeman, whose duty it was, after uncoupling the way car and the other cars that were not to go to the stock-yards, to throw the switch, so that the balance of the train could be backed in on the side track. Just before the rear of the train reached the station-house, the caboose and the two rear cars were cut off by Moore from the balance of the train, and left on the main track. The front portion of the train was stopped on the bridge. Moore gave the signal to Persinger, who was then on the top of the cars, to pull ahead so as to clear the switch, and, on Persinger repeating the signal to the engineers, the engines started. Moore discovered that the rear part of the train did not move, so he walked along the side of the cars to the bridge, where he climbed on top of one of the cars, and on walking forward he found that the train was broken in two. Persinger was standing on the third car from the break, when Moore walked up to him and said, “We are broken in two.” Persinger replied, “I guess not;” and signaled the engineers to go ahead. They both walked forward to the break in the train, which was over the bridge. Moore climbed down onto the bridge, when he discovered that the coupling-pin was broken. He left Persinger standing on the car, and went to the engine to get another pin. When he reached the engine, Taylor, one of the engineers, inquired of him where Persinger was. He replied that he left him on the cars, and Taylor said: “I am afraid he is down over the bridge.” Moore, on returning to the car where he left Persinger, discovered his body on the ground. He and the fireman went down to where Persinger was lying, and found that he was dead. The body was lying partly under the outer line of the bridge, and the lantern he carried was found two or three feet from his body. H. G. Taylor and L. S. Collier, the engineers, were the only witnesses who testified on the trial as to the manner of the accident. They were called to the witness stand by the defendant in error. Mr. Taylor testified on this branch of the case as follows: “Question. Did you see the lantern go down? Answer. I did. Q. Were you the first one to see it? A. I cannot say. Q. What did you see when you saw the lantern go down? A. I stood on my engine. I stood and thought there was something wrong. I saw the rear brakeman had come over the top of the cars, and come where the deceased was standing on the cars of the main body of the train. Brakeman Moore came along, and he came down by the side of the cars, standing on the main body of the train, and got down on the main body of the bridge, and went--that would be about a half a car-length away from the train--towards the engine to get a pin to couple up the train with. When the rear brakeman was about half a car-length from the end I saw the lamp, as it whirled, making a half circle, going over there, on the side. I went and saw the rear brakeman, and asked him where he left him, and he said he left him on top of the cars, and I said, ‘I am afraid he is down over the bridge.’ ‘Well,’ says Moore. ‘if he has gone over the bridge he will brake no more.’ Q. Then what did you do? A. Then Moore, the brakeman, went back to the point to ascertain where the deceased was at that time, and found out where he was; and my fireman followed Moore when he went back. There were no words from the brakeman, nor was Persinger to be seen. Then they came running back over the trestle work, and went below the bridge, and there they found him lying. Q. Did you get down,--did you go with them? A. No; I waited until after they were down. I was the last down. Q. State from that profile, Exhibit A, where you found the body of Persinger. A. About this place here. Q. Between the seventh and eighth spans from the west end of the bridge, counting the small spans at the end of the bridge? A. Yes. Q. Now, state where the body was lying with reference to the stringers, on the south side of the bridge. A. It was laying with its feet towards the south, and his head rather inclined in towards a plumb line from the top of the stringers. Q. That is, he was laying partly under the outer line of the track? A. Yes. Q. The stringers being the outer line of the track? A. Yes. Q. Where was the lantern. About an arms-length from where he was lying, south of him. Q. Was it broken? A. It was setting on end; whether broken I could not say. Q. You didn't notice whether the glass was broken out? A. No, sir. Q. Was there a stone there so you could identify the place? A. Yes. Q. What kind of a stone was it? A. A common flag-stone. Q. A common rough stone? A. Yes. Q. Do you know how high the bridge was where Persinger went down? A. I would say from twenty-five to thirty feet, or thereabouts. Q. When you first saw him he was going over on top of the car? A. Yes. Q. How far up was he on the car? A. I could not say, only from the reflection against the side of the car as it was going down. Q. The lamp dropped straight down? A. No; it was rather outward. Q. Did it fall straight down? A. No; it was going in a circle. Q. How far did it circle out from the side of the car? A. I don't know exactly. It was about the same as a man would take his arm, and give a swing about like that. Q. When you first saw it, was the reflection near the top or bottom of the car? A. It was near the top of the car. Q. You don't know exactly how near the top of the car? A. No; I cannot tell. Q. Who gave you the signal to stop? A. Persinger. Q. He was on the top of the train? A. Yes. Q. You stopped in response to his signal? A. Yes. Q. What else did he do? A. Hestood until the rear brakeman came up. Q. Then what did he do? A. He was standing still on the train? Q. How did you know that? A. I saw him. Q. Could you see Persinger from there? A. Undoubtedly so. Q. Plainly? A. It was not very dark, and he had his lantern there. Q. Don't you know it was a dark night? A. I don't think it was very...