Chicago, Rock Island & Pacific Railway Co. v. McCarty
| Citation | 68 N.W. 633,49 Neb. 475 |
| Decision Date | 21 October 1896 |
| Docket Number | 6751 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. PATRICK MCCARTY |
| Court | Supreme Court of Nebraska |
ERROR from the district court of Douglas county. Tried below before DAVIS, J.
REVERSED AND REMANDED.
M. A Low, W. F. Evans, and C. S. Montgomery, for plaintiff in error:
The petition does not state a cause of action. It is not alleged therein that defendant in error was ignorant of the danger of complying with the order of the foreman, or that the danger was not connected with, or was not within the scope of, his employment. Admitting the facts alleged in the petition to be true, the defendant in error cannot recover unless the danger was unknown to him and not within the scope of his employment. (Indianapolis & St. L. R. Co. v. Watson, 114 Ind. 20; Louisville, N. A. & C. R. Co. v Sanford, 117 Ind. 265; Louisville, N. A. & C. R. Co v. Corps, 24 N.E. 1046 [Ind.]; New Kentucky Coal Co. v. Albani, 40 N.E. 702 [Ind.]; Missouri P. R. Co. v. Baxter, 42 Neb. 793; Skidmore v. West Virginia & R. R. Co. 23 S.E. [W. Va.] 713.)
If the evidence tended to show that the order given by the foreman was a negligent one, it showed beyond a doubt that defendant in error, in attempting to comply with it, assumed the danger, or was guilty of gross negligence in attempting to obey it. The court erred in refusing to instruct a verdict for defendant below.
The court erred in giving the instruction relating to the servant's duty to obey orders and the question of negligence. (Missouri P. R. Co. v. Baxter, 42 Neb. 793; Ransom v. Getty, 37 Kan. 76; Whitsett v. Chicago, R. I. & P. R. Co. 67 Iowa 150; Chicago, R. I. & P. R. Co. v. Houston, 95 U.S. 703; Union P. R. Co. v. Ogilvy, 18 Neb. 643; Cropsey v. Averill, 8 Neb. 152; Spears v. Chicago, B. & Q. R. Co. 43 Neb. 720; Kearney Electric Co. v. Laughlin, 45 Neb. 390.)
Mahoney & Smyth, contra.
In argument against plaintiff in error's first contention, reference was made to the following cases: Mattise v. Consumers Ice Mfg. Co. 16 So. 400 [La.]; Promer v. Milwaukee, L. S. & W. R. Co. 63 N.W. 90 [Wis.]; Missouri, Kansas & T. R. Co. v. Hamilton, 30 S.W. 679; Settle v. St. Louis & S. F. R. Co. 30 S.W. 125 [Mo.]; Strong v. Iowa C. R. Co. 62 N.W. 799 [Iowa]; Sioux City & P. R. Co. v. Findlayson, 16 Neb. 578; Lee v. Smart, 45 Neb. 318; Kearney Electric Co. v. Laughlin, 45 Neb. 390; Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556; English v. Chicago, M. & St. P. R. Co. 24 F. 906; Miller v. Union P. R. Co. 12 F. 600; Hawley v. Northern C. R. Co. 82 N.Y. 370; Patton v. Western N. C. R. Co. 1 S.E. [N.C.] 863; Stephens v. Hannibal & St. J. R. Co. 86 Mo. 221; Union Stock Yards Co. v. Conoyer, 38 Neb. 488; Mays v. Chicago, R. I. & P. R. Co. 14 N.W. 340 [Iowa]; Wells v. Burlington, C. R. & N. R. Co. 9 N.W. [Iowa] 364; City of Lincoln v. Walker, 18 Neb. 244; Union P. R. Co. v. Broderick, 30 Neb. 735; Union P. R. Co. v. O'Hern, 24 Neb. 775; Kelley v. Chicago, M. & St. P. R. Co. 50 Wis. 381.
Defendant in error was not guilty of contributory negligence in attempting to obey the order of his master.
The facts and issues appear in the opinion.
This was an action by McCarty against the railway company to recover for personal injuries sustained by McCarty while in the employ of the company. He recovered a judgment for $ 10,000. The railway company, by petition in error, seeks to reverse this judgment. McCarty, by cross-petition in error seeks also to reverse it, on the ground of error in sustaining a motion for a new trial after a former verdict in his favor for $ 15,000, and to have judgment entered on such former verdict.
The cross-petition in error may be briefly disposed of. The motion for a new trial after the first verdict contained numerous assignments requiring for their review a consideration of the evidence. What purports to be a bill of exceptions embodying the evidence on the first trial, and also certain evidence used in support of the motion for a new trial, is not authenticated as the law requires and cannot, therefore, be considered. Error in sustaining the motion, therefore, does not appear, for this reason if for no other.
On the second trial the evidence, which was, except in a few details, uncontradicted, was to the following effect: McCarty had had some experience in railroad work in the general line of service in which he was employed by this company. He had been employed by Butler, a foreman of a construction crew some eight weeks prior to the accident, and during that interval his work had been with a crew engaged in moving earth by means of a steam shovel. This shovel occupied a temporary track from twelve to eighteen feet from the main track. A train of flat cars, moved along the main track, was loaded by means of the steam shovel and then drawn several miles away for the purpose of unloading. The train had a conductor, engineer, and a fireman, as well as two men designated as "cable men," whose duty it was to assist in the unloading of the train. At the shovel, in addition to Butler and the men operating it, were four laborers, one of whom was McCarty, and whose general business it was to work on the ground and assist in loading. These men were employed and discharged by Butler, and subject generally to his orders. When the hour for ceasing work had almost arrived on the day the accident occurred the train had been loaded, and it was Butler's desire to unload it that night. He concluded, therefore, to send the men working at the shovel with the train to assist in unloading. He testifies that before the train started he gave them a general order to get aboard. This is contradicted; but no particular significance attaches, because it is undisputed that if such an order was given it did not reach McCarty's ears. The train then started, and as it was pulling out Butler commanded McCarty to get aboard. McCarty undertook to do so. There were no steps or hand-holds on the cars, and McCarty, for the purpose of boarding them, seized with his right hand a stake on the side of a car and placed his right foot on the casing above one of the journals. This casing was rounded on top and McCarty's foot slipped off and the other foot passed beneath the wheels, crushing it so that a partial amputation of the foot was necessary. The testimony as to the condition of the ground adjoining the tracks and the construction of the cars is such as to create a very reasonable inference that to board the cars while in motion was a more or less dangerous proceeding. There is no evidence tending to show that any better or safer method existed of getting upon the cars than that which McCarty undertook to pursue. The argument of the railway company, stated in a condensed form, is that there is no obligation resting upon a master to exercise greater care for a servant's safety than the servant is himself required to exercise; and that if it was negligence for Butler to command McCarty to board the train while it was in motion, it was contributory negligence for McCarty to obey the order, it being neither alleged nor proved that the danger was not so apparent and so well known to McCarty as to Butler. Numerous authorities are cited in support of the arguments on either side of this proposition; but we do not believe that their review in the opinion would be of any utility. It is only necessary to say that they disclose the hopeless conflict which exists among the authorities on many questions connected with the rights of master and servant in such cases; and to here collate them would only serve to show the desirability of "employers' liability acts," which would, by harmonizing the law, make it more nearly just both to...
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