Chi., St. P., M. & O. Ry. Co. v. McManegal

• Decision Date: 19 April 1905
• Citation: 73 Neb. 580,103 N.W. 305
• Court: Nebraska Supreme Court
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. MCMANEGAL ET AL.

73 Neb. 580

103 N.W. 305

CHICAGO, ST. P., M. & O. RY. CO.

v.MCMANEGAL ET AL.

Supreme Court of Nebraska.

April 19, 1905.

Syllabus by the Court.

1. When contradictory verdicts are returned in favor, respectively, of two several parties, it is the duty of the court to ascertain whether there is any other error, and, if not, which of them, if either, is such only as could be upheld by the evidence, and, if either of them is such, to render a judgment of affirmance thereon, disposing of the other as the law and the relations of the parties may require.

2. When, in a joint action against a principal and his agent to recover damages for alleged negligence of the agent in conduct strictly within the performance of his duty, there is a verdict in favor of the latter that is free from error, and is such as could alone be supported by the evidence, there should be a judgment for the principal also, although upon the same record and in the same case there may be a verdict against him.

Commissioners' Opinion. Error to District Court, Douglas County; Read, Judge.

Action by James B. McManegal against the Chicago, St. Paul, Minneapolis & Omaha Railway Company and William Rogers. From a judgment against the railway company, it brings error. Judgment as to the railway company set aside, and judgment in favor of Rogers affirmed.J. B. Sheean, H. C. Brome, and B. T. White, for plaintiff in error.

T. J. Mahoney and John D. Ware, for defendants in error.

AMES, C.

A bare outline of the facts will suffice for an understanding of the problems presented for solution in this case. William Rogers was engaged as foreman of a company of laborers, one of whom was the plaintiff, in the demolition of a building belonging to the defendant railway company, and standing on its right of way. It is alleged that in the construction of the building 14 years previously there was a defect of a character affecting its stability to such a degree as to render it more easily destructible than it would otherwise have been, but it is not claimed that such alleged weakness was concealed, or rendered the building unsafe for the purposes for which it was erected, or diminished its durability under ordinary circumstances, or that it was constructed with a view to its future destruction, or that, if it had been so, the company would have been under any duty or obligation to its employés or the public to render the work of demolition unnecessarily difficult. But it is alleged that Rogers negligently commanded the plaintiff to engage in the work of wrecking at a place rendered dangerous by means of such weakness, and that, as a consequence thereof, the building, while the plaintiff was so employed, unexpectedly gave way, precipitating him to the ground and inflicting injuries upon his person. This is an action for damages brought against the company and Rogers jointly. There were separate answers, which for the purposes of the present discussion may be treated as consisting severally of a general denial accompanied by a plea of contributory negligence. The court instructed the jury that they were at liberty to find in favor of either party and against the other, and they accordingly returned a verdict in favor of Rogers and against the plaintiff, but in favor of the plaintiff and against the company for substantial damages. The instruction was excepted to, and the plaintiff and the company prosecute separate petitions in error. Before filing its motion for a new trial, the latter filed a motion for a judgment in its favor on the ground that the verdict in favor of Rogers is equivalent to a special finding in its favor that there was no actionable negligence, and is inconsistent with the general verdict against it, which it therefore overrides, entitling the company to judgment under the statute governing such cases. The motion was overruled. The plaintiff excepted to the instruction, and assigns it for error in his petition in error and brief, but he was not prejudiced by it unless by reason of it he was deprived of a verdict to which otherwise he was or would have been entitled and, therefore, presumably, would have obtained. He also assigned in his brief that the court erred in refusing to give three instructions requested by him, but he presented no argument in support of the assignment either in his brief or orally. Under such circumstances we do not feel obligated to enter upon a critical examination of them, and it may suffice to say that...