Chicago, Burlington & Quincy Railroad Company v. Kellogg

• Decision Date: 23 September 1898
• Docket Number: 7797
• Citation: 76 N.W. 462,55 Neb. 748
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. GEORGE KELLOGG
• Court: Nebraska Supreme Court

76 N.W. 462

55 Neb. 748

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. GEORGE KELLOGG

No. 7797

Supreme Court of Nebraska

September 23, 1898

REHEARING of case reported in 54 Neb. 127. Remittitur made a condition of affirmance.

Affirmed conditionally.

J. W Deweese, F. E. Bishop, W. S. Morlan, and W. P. Hall, for plaintiff in error.

A. J Shafer, S. A. Dravo, and Stewart & Munger, contra.

OPINION

SULLIVAN, J.

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 averment that 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. (Omaha & R. V. R. Co. v. Wright, 49 Neb. 456, 68 N.W. 618; O'Connor v. Illinois C. R. Co., 83 Iowa 105, 48 N.W. 1002; Louisville, E. & S. L. C. R. Co. v. Utz, 133 Ind. 265, 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 Missouri P. R. Co., 87 Mo. 588, it is said the allegations in the petition that the injury was caused by the negligence of the master in failing to provide safe appliances, and stating particularly the defect, are 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 Kansas City & P. R. Co. v. Ryan, 52 Kan. 637, 35 P. 292, as follows: "It has been frequently ruled by this court, in accordance with the authorities generally, that an employe 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 employes, 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 employes, the railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employes 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 employe 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 employe 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 complained of, or that, by the exercise of reasonable and ordinary care and diligence, it might have obtained such notice; that proof of a single defective or imperfect operation of any such machinery or instrumentalities resulting in injury will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or alleged defect, imperfection, or insufficiency in such machinery or instrumentalities." In the case of Lincoln Street R. Co. v. Cox, 48 Neb. 807, 67 N.W. 740, it was held that in an action by a servant against his master for an injury occasioned by a defective tool or appliance the jury are not authorized to infer negligence from the mere fact that the accident happened. To the same effect are Washington & G. R. Co. v. McDade, 135 U.S. 554, 34 L.Ed. 235, 10 S.Ct. 1044; Chicago, St. L. & P. R. Co. v. Fry, 131 Ind. 319, 28 N.E. 989; Hull v. Hall, 78 Me. 114, 3 A. 38; St. Louis, I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Mixter v....