Chicago, Rock Island & Pacific Railway Company v. Kerr

• Decision Date: 08 June 1905
• Docket Number: 13,503
• Citation: 104 N.W. 49,74 Neb. 1
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ALEXANDER DUNDY KERR
• Court: Nebraska Supreme Court

104 N.W. 49

74 Neb. 1

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. ALEXANDER DUNDY KERR

No. 13,503

Supreme Court of Nebraska

June 8, 1905

ERROR to the district court for Douglas county: WILLARD W SLABAUGH, JUDGE. Affirmed.

AFFIRMED.

M. A Low, W. F. Evans and Woolworth & McHugh, for plaintiff in error.

McCoy & Olmsted, contra.

OPINION

HOLCOMB, C. J.

The plaintiff, defendant in error, obtained a judgment in the court below for damages for personal injuries alleged to have been sustained by reason of the negligence of the servant of the defendant railway company, plaintiff in error, and it is sought by this action to secure a reversal of such judgment. The action is grounded on alleged negligence of the conductor of the defendant company while ejecting the plaintiff, a boy about 16 years of age, who was a trespasser on a moving freight train, and in so doing, as is alleged, throwing the plaintiff under the wheel of one of the cars, thereby causing the crushing of one of his lower limbs near the ankle rendering amputation necessary. It is contended hereon the part of the defendant that the judgment cannot be upheld, for the reason that the petition states no cause of action against the defendant, and that under the pleadings the defendant was entitled to a judgment in the court below. It is further contended that under the evidence the company is not liable to the plaintiff for the injury received by him; the conductor's interference, if any, being, as contended for, not for the purpose of putting the plaintiff off the train or of resisting his attempt to board the train, and therefore it was not within the scope of the conductor's employment, and hence the company is not legally liable therefor. The petition, among other things, alleges: "The said Alexander Dundy Kerr, the plaintiff, was in the said town or city of Neola, and, while the said freight train was at said town or city of Neola, wishing to return to his home in said city of Omaha, and without having paid or offering to pay any fare, but peaceably and with the knowledge of the conductor thereon, became a rider on said freight train, in a position thereon on the south side of said train, wholly outside of the wheels of the cars, and south of the south rail of the roadbed, and in a position of safety from harm or injury to the plaintiff while the train was in motion, as was well known to said conductor, unless there was an injury to the train, or the plaintiff was forcibly ejected, or compelled to alight therefrom while the train was running at high speed; and said position of the plaintiff was beneath and in the middle, but at the very side, of the car on which he placed himself, and from which he could and did remove himself without any necessity or possibility of contact with the rail of the roadbed or wheels of the car, and the position of the plaintiff under the car was such that his presence there was and could be no impediment of or interference with the management and further operation of the train on its westward journey. But after said train was in motion, and while it was going on its way as aforesaid, at a slow rate of speed, the said conductor, who was a car length or more in front of the plaintiff (and no other employee of the defendant was near or in sight), in the performance of his duty, but in a gruff or angry tone of voice, ordered the plaintiff to get off and keep off of said train, and at the same time, in performing his duty, said conductor proceeded to and did alight from the car on which he (said conductor) was riding, and walked or ran backwards on the ground at the side of the train toward the place where the plaintiff was riding, with the apparent purpose of ejecting plaintiff from the train, and of keeping or preventing him from getting on the train again. The plaintiff heard the said order of said conductor, and, intending to obey it in all respects, proceeded at once to alight from the train upon the ground, which he did in proper, upright position, with his feet upon the ground, entirely outside of the car and train, and with face forward, and the plaintiff was then in a position and place of absolute safety to himself, and would not have received any injuries to his person about or upon defendant's railway, except for the following facts: The plaintiff, the moment after alighting from said train, and before he had an opportunity or was able to turn and peaceably to leave the side of the train and to leave the railway of the defendant, as he intended to do, came full into the arms of said conductor, and said conductor, in the continued performance of his duty to the defendant, then and there, wilfully, wantonly, negligently, and with a total disregard for the safety of the plaintiff, and of his duty to avoid doing any injury to him, grasped with his hands the arms and shoulders of the plaintiff, and proceeded violently and negligently to shake the plaintiff, who was small of size, and to swing him about and off of the ground, so that, and wholly because thereof, without any fault on the part of the plaintiff, said conductor did, in such performance of his duty, wilfully, wantonly and negligently cause the right leg of the plaintiff to be thrown over and across the south rail of defendant's railway, and beneath the wheel or wheels of said train thereon, and to be run over and crushed a little above the ankle by the wheels of said train, and the leg of the plaintiff was thereby so badly mangled as to render necessary, in order to save the life of plaintiff, the amputation of said leg, as was done, about midway between the ankle and the knee." The answer, while admitting that the plaintiff received certain injuries, denies that the said injuries, or either or any of them, were caused or were the result of any carelessness or negligence on the part of the defendant, or of any of its servants, agents or employees. It is further alleged in the answer "that all of the said injuries were caused by and were the result of the plaintiff's own carelessness and negligence and unlawful conduct; that the said plaintiff was at the time of receiving said injuries wrongfully, negligently and unlawfully, and without the permission or consent of the defendant, trespassing upon the property of the defendant; that at said time he negligently, wrongfully and unlawfully boarded one of the freight trains of the said defendant, and got upon one of the freight cars of said defendant in said train, under the floor thereof, while the said car and train were in motion, without the knowledge or consent of the defendant, and for the purpose of riding thereon without paying, or attempting to pay, or intending to pay the fare for riding thereon; that said position was an exceedingly dangerous one, and that plaintiff well knew at said time that the said position which he took under said car on said train was an exceedingly dangerous one, and that he had no right to get on or remain upon said car at said place or time, or at any other place or time; that while negligently and wrongfully riding upon said car, under the floor thereof, plaintiff negligently, and without the exercise of any care or caution, alighted from said car and train while the said car and train were in motion; and that by reason of said negligence and carelessness and unlawful and wrongful conduct, the plaintiff received the injuries in question."

The reply is a general denial.

1. With reference to the contention that the petition does not state a cause of action, it occurs to us that both parties to the controversy have at all times during the progress of the trial in the lower court regarded the pleading as sufficient. The defendant company has given the petition such a construction as required it to answer and defend in the action, and it would seem that this court ought not now to construe the petition as not stating a cause of action unless, under a liberal construction of all of its allegations, aided, if it is, by the allegations of the answer, with the view of sustaining it if possible, the conclusion is irresistible that it is defective in substance and that no cause of action against the defendant has been stated. The nearest the defendant has approached to a challenge of the sufficiency of the petition, or of the evidence in support of its allegations, was when, at the close of the submission of plaintiff's evidence at the trial, the defendant asked for a peremptory instruction to the jury to return a verdict in its favor on the ground that the testimony introduced in accordance with the averments of the petition affirmatively establishes the fact that the acts complained of were acts done by the conductor, not in the performance of his duty to the master, and not within the scope of his employment, and are acts for which he himself is liable. The motion can be regarded only as a demurrer to the evidence introduced by the plaintiff in support of the cause of action set forth in his petition. The rule in this jurisdiction is that, where an objection to a petition on the ground that it does not state a cause of action is not interposed till after the trial of the case, the pleadings will be liberally construed, and, if possible, sustained. Chicago, B. & Q. R. Co. v. Spirk, 51 Neb. 167, 70 N.W. 926; Spirk v. Chicago, B. & Q. R. Co., 57 Neb. 565, 78 N.W. 272. Against an objection at the inception of a trial to the introduction of any evidence, on the ground that the petition does not state a cause of action, the pleadings attacked will be liberally construed, and, if possible, sustained. Norfolk Beet Sugar Co. v. Hight, 56 Neb. 162, 76 N.W. 566. The petition which is attacked for the first time in the supreme court on the ground that it does not state a cause of action will be...