Dailey v. Burlington & M. R. R. Co.

• Decision Date: 06 April 1899
• Citation: 78 N.W. 722,58 Neb. 396
• Parties: DAILEY v. BURLINGTON & M. R. R. CO.
• Court: Nebraska Supreme Court

58 Neb. 396

78 N.W. 722

DAILEY

v.BURLINGTON & M. R. R. CO.

Supreme Court of Nebraska.

April 6, 1899.

Syllabus by the Court.

1. An employé assumes the ordinary risks of his employment.

2. Notwithstanding a party has negligently placed himself in a position wherein he is exposed to injury, if another, after discovery of such condition, inflicts the injury by reason of failure to exercise ordinary care to avoid it, the former may have an action for damages against the latter.

3. A section boss and men in charge of and running a hand car on the track of a railway company remained on the track, and attempted to remove the hand car, and prevent its endangering the safety of an approaching train and the persons thereon. Such facts alone were not conclusive of their contributory negligence.

4. A pleading may be said to allege what can, by reasonable and fair intendment, be implied from its statements, and, when assailed by general demurrer, all it states is to be considered as admitted, and unless, when viewed in the light of the foregoing rule, there is no cause of action stated, the pleading must be upheld.

Error to district court, Douglas county; Dickinson, Judge.

Action by John F. Dailey, administrator of the estate of William T. Dailey, deceased, against the Burlington & Missouri River Railroad Company. There was judgment for defendant, and plaintiff brings error. Reversed.T. J. Mahoney and John D. Ware, for plaintiff in error.

Greene & Breckenridge and J. C. Kinsler, for defendant in error.

HARRISON, C. J.

This action was instituted by the administrator of the estate of William T. Dailey, deceased, to recover the damages alleged to have resulted from the negligence of the company by which the death of William T. Dailey was caused on the 17th day of February, 1896, while he was an employé of the company as what is termed a “section boss,” and engaged in the performance of his duties. To the petition there was interposed a general demurrer, which, on hearing, was sustained, and the action dismissed, and a petition in error has been presented to this court in behalf of the plaintiff in the suit.

The petition was a somewhat extended and lengthy statement of the occurrences and circumstances upon which the action was predicated, and we deem it best not to quote it in full, and to state herein but a few of the main facts. On the 17th day of February, 1896, William T. Dailey and two “section men,” employés of the company, went over a portion of the line of the company's road upon a hand car,--a part of the section to which they were employed to attend and keep in good condition. At the particular time in question the men were engaged in what is not inaptly termed in the petition “a required tour of inspection” of the particular part of the section of the line of road over which they then passed or ran the hand car. They went to the northern termination of the section, and there they stopped, and looked northward along the line, in which direction they had a free and unobstructed view for a distance of about one-half of a mile. They could see no train or car approaching them from that direction, nor could they hear the sound of any. A section of a northerly-bound train had passed them, or had been seen by them, which had displayed a signal, which, to parties who understood it,--of whom were the section boss and men,--signified that there was a second section of the train running on the same time as the first, and which might be expected over the road from the south any minute or time. It was then due. With these matters in mind, they started to run the hand car southward a distanceof about 900 feet, to reach a place where there was a highway crossing of the railway, where it would be suitable and convenient to remove the hand car from the track, if it became necessary, and await the passage of the section of the train which was expected from the southern direction; but before they reached the highway crossing they were overtaken by a locomotive, with one car attached, coming from the northward, and running at a high rate of speed, of the approach of which they were not properly warned. That they, after they became aware of the proximity of the locomotive, attempted to remove the hand car from the track, but for lack of time could not do so. They stepped aside. The hand car was struck by the engine, thrown from the track and against Dailey, and he was so injured by being struck by it that within a few minutes thereafter he died. The foregoing is but a summary of some of the main circumstances pleaded in the petition, in which was an amplified narrative of the matters, main and collateral, which, connectedly, constituted the alleged cause of action. There were also allegations of negligence attributed to the company, and the absence of negligence of the plaintiff.

The...