Ellis v. Union Pac. R. Co.

• Decision Date: 13 June 1947
• Docket Number: 31889.
• Citation: 27 N.W.2d 921,148 Neb. 515
• Parties: ELLIS v. UNION PAC. R. CO.
• Court: Nebraska Supreme Court

27 N.W.2d 921

148 Neb. 515

ELLIS v. UNION PAC. R. CO.

No. 31889.

Supreme Court of Nebraska

June 13, 1947

Syllabus by the Court

1. As a general rule, an issue as to the existence or occurrence of a particular fact, condition, or event may be proved by evidence as to the existence or occurrence of particular facts, conditions, or events under the same or substantially similar circumstances.

2. To recover under the Federal Employers' Liability Act plaintiff must establish by a preponderance of the evidence that defendant was negligent in one or more of the particulars as alleged in his petition, and that such negligence was in whole or in part the proximate cause of his injuries.

3. In such cases, instructions to the jury should be considered together that they may be properly understood and when, as an entire charge it appears that they do not limit recoverable negligence to that charged in plaintiff's petition, but authorize recovery for negligence generally, they will ordinarily be adjudged to be prejudicially erroneous.

4. Assumption of risk is ordinarily an affirmative defense and unless made an issue by the pleadings and evidence, no instruction should be given thereon.

5. In actions to recover damages under the Federal Employers' Liability Act, the defense of assumption of risk has been removed from the law only if the risk involved was in whole or in part caused by or resulted from defendant's negligence.

6. As the Federal Employers' Liability Act is construed, the carrier cannot be relieved from the consequences of its own negligence by claiming that the employee assumed the risk thereof, but the carrier cannot be charged with or liable for those injuries which result from the usual risks incident to employment, notwithstanding its exercise of reasonable care or for those solely caused by or resulting from plaintiff's own negligence, although his contributory negligence as a defense will only proportionately diminish his recovery.

7. In actions to recover under the Federal Employers' Liability Act, it is prejudicial error to instruct the jury without appropriate qualification that plaintiff cannot be held to have assumed the risk of his employment.

T. F. Hamer, R. B. Hamer, and G. C. Holdrege, all of Omaha, for appellant.

Rosewater Mecham, Shackelford & Stoehr, of Omaha, and Tautges, Rerat & Welch, of Minneapolis, Minn., for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

This action was predicated upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Plaintiff recovered a verdict for $10,000, upon which judgment was entered. Defendant's motion for new trial was overruled, and it appealed to this court. Former opinions in the same case are reported 146 Neb. 397, 19 N.W.2d 641, and 147 Neb. 18, 22 N.W.2d 305, respectively. Upon the record before us, we therein ultimately reversed and dismissed plaintiff's case, primarily upon the premise that plaintiff's evidence failed to disclose any negligence by defendant in whole or in part proximately causing plaintiff's injuries, but rather affirmatively established as a matter of law that they were proximately caused solely by his own negligence. As a matter of course, in that situation we did not discuss defendant's other assignments of error, which, if they had merit, would have required reversal and remand for new trial. In view of the fact, however, that upon appeal, the Supreme Court of the United States, 329 U.S. 649, 67 S.Ct. 598, 600, 91 L.Ed. 572, held that the evidence did raise questions of fact for the jury to determine, the case is again before this court to adjudge the merit of defendant's other assignments of error.

Those assignments were: (1) That the trial court erred in admitting certain evidence over defendant's objections, and (2) erred in giving instructions No. 1, 4, 10, 11 12, and 13 respectively. We conclude that instructions No. 4, 10, and 13 were prejudicially erroneous.

The nature of the case and a detailed statement of its salient facts, together with quotations from the federal statutes involved, will be found in our former opinions and the opinion of the Supreme Court of the United States. Except where necessary for clarity, they will not be repeated.

However, it will be well at the outset to quote a part of the opinion of the Supreme Court of the United States. After reviewing a portion of the evidence, it was said: 'From this evidence the jury might have concluded that petitioner had a safe place to work but elected to choose a dangerous one, that any duty of warning was fully discharged by the presence of the sign, and that the engineer had not been negligent in any way. In that view of the case the accident would be an unforseeable, freak event or one caused solely by petitioner's own negligence. On the other hand, it would not have been unreasonable for the triers of fact to have inferred that it was proper and usual procedure to work on the right side of the engine, that the hazard was not readily apparent and was almost in the nature of a trap, that while the sign was placed so as to be readily visible from a train, it was insufficient warning to a man on the ground, and that consequently petitioner was not furnished a safe place to work. And the jury might have thought that the engineer was negligent in failing to perceive the peril in time to avert the accident by a warning or by stopping the engine. Again, both parties might have been found negligent, in which event it would have been the duty of the jury, as the trial judge charged, to render a verdict based upon the damages caused by respondent's negligence diminished by the proportion of negligence attributable to petitioner. 45 U.S.C. § 53, 45 U.S.C.A. § 53.

'The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury. 45 U.S.C. § 51, 45 U.S.C.A. § 51. Brady v. Southern Ry. Co., 320 U.S. 476, 484, 64 S.Ct. 232, 236, 88 L.Ed. 239. Whether those standards are satisfied is a federal question, the rights created being federal rights. Brady v. Southern Ry. Co., supra; Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.'

With regard to the first assignment, it was argued that the trial court prejudicially erred in receiving, over defendant's objection, the testimony of a witness relating to the condition of the track and roadbed involved at some time other than the time when the accident occurred, when such evidence was not material and when no similarity in essential conditions was shown to exist. It was also argued that the same witness was erroneously permitted to testify that on some occasion other than the time of the accident, he saw cars rock back and forth and that they had a tendency to lean toward the adjacent building as they were being moved on the track, when such evidence was not material and when no substantial similarity in essential conditions affecting the result was shown to exist.

Without reciting or summarizing such evidence, we deem it sufficient to say that we have examined the same and conclude that its admission was not logically subject to the complaint made by defendant. Rather, the evidence was material and its character was such as to make it admissible. The evidence discloses that the necessary similarity of essential conditions existed at the time, making applicable the general rule that: 'An issue as to the existence or occurrence of a particular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar, circumstances.' 32 C.J.S., Evidence, § 584, p. 438. See, also, 20 Am.Jur., Evidence, § 306, p. 284. We conclude that the trial court did not abuse its discretion in admitting the evidence and that its admission was not prejudicially erroneous.

Defendant assigned that a part of instruction No. 1, which submitted the material allegations of plaintiff's petition, was erroneous. That portion of the instruction read as follows: 'Plaintiff alleges that the defendant was guilty of negligence in moving the car which came in contact with plaintiff, in that the said car was too large to safely move on the said track. He further alleges that the defendant negligently and carelessly failed to maintain its said tracks in a reasonably safe condition and permitted the same to become uneven, and permitted low joints to exist therein, which plaintiff alleges caused the car while in motion to list in the direction of the building, and alleges that that greatly reduced the clearance between the side of the car and the said building.'

Defendant argued that the instruction erroneously invited the consideration of issues which were not supported by evidence. The evidence disclosed that the car involved, although of a type used by defendant and other railroads, was 50 feet 6 inches long, and approximately 10 feet 7 inches wide. It was of such unusual size, comparatively speaking, that it was the only type which could have caused the failure of clearance at the precise point where plaintiff was injured.

Admittedly that part of the instruction relating to the condition of the track had some support in the evidence. It will be noted, also, that there was evidence in the record that by reason thereof and the size of the car, it was caused to list in the direction of the building, thus reducing the clearance. There was nothing said in the instruction about swaying, pitching, or lurching of the car, as argued by defendant. In Southern...