Ellis v. Union Pac. R. Co.

• Decision Date: 22 March 1946
• Docket Number: 31889.
• Citation: 22 N.W.2d 305,147 Neb. 18
• Parties: ELLIS v. UNION PAC. R. CO.
• Court: Nebraska Supreme Court

22 N.W.2d 305

147 Neb. 18

ELLIS v. UNION PAC. R. CO.

No. 31889.

Supreme Court of Nebraska

March 22, 1946

Appeal from District Court, Douglas County; Fitzgerald Judge.

Syllabus by the Court.

1. Negligence, as defined in cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. is lack of due care under the circumstances; the failure to do what a reasonable and prudent man would have done, or doing what such a person would not have done under the existing circumstances.

2. The burden in such cases is upon the plaintiff to prove by a preponderance of the evidence that the employer was negligent in some manner as alleged in his petition, and that such negligence was the proximate cause, in whole or in part, of the injuries sustained.

3. The plaintiff is required to present probative facts as distinguished from mere speculation or bare possibility and the weight of the evidence upon both the question of defendant's negligence and proximate cause must be more than a scintilla to justify their submission to a jury.

4. When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by nonsuit, directed verdict, or otherwise, in accord with the applicable practice without submission to a jury, thereby saving the result from mischance of speculation over legally unfounded claims.

5. The foreman in charge of a switching crew movement will not be permitted to recover for an injury, due to his own negligent failure to act, merely upon the ground that possibly it might have been prevented if members of his crew in a secondary relation to the movement had done more.

6. The master's duty to provide his servants with a safe place to work extends to such parts of the premises only as he has prepared for their occupancy while doing the master's work and to such other parts as he knows, or ought to know, they are accustomed to use while doing it. If the servant voluntarily, and without custom or necessity, departs from the safe place to one more dangerous and is injured the master is not liable.

7. A railroad company will not be liable for injuries sustained by an employee where it was neither necessary nor customary for him, in performance of duty, to be in a position where he would be in danger of coming in contact with an obstruction on, over, or near its tracks, nor will it be liable where the obstruction causing the injury was maintained by a third person without consent of the company and was not under its control.

8. The court adheres to the result of its former opinion, Ellis v. Union Pac. R. Co., 146 Neb. 397, 19 N.W.2d 641.

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.

Plaintiff, an engine foreman in charge of a switching crew, sought recovery for personal injuries received by him in a narrow clearance between a box car in defendant's service and the building of another because of alleged negligence of defendant. The action was predicated upon the Federal Employers' Liability Act. Upon submission to a jury plaintiff was awarded a verdict and judgment for $10,000. Motion for new trial was overruled and defendant appealed. The former opinion of this court, Ellis v. Union Pac. R. Co., 146 Neb. 397, 19 N.W.2d 641, held substantially that plaintiff having failed to prove any negligence charged the court erred in submitting the case to the jury and the cause was reversed and dismissed.

In motion for rehearing it was argued by plaintiff that this court had overlooked fundamental changes in federal construction of the Federal Employers' Liability Act requiring submission of similar cases to a jury for decision. We granted reargument on motion for rehearing but find from a study of cited cases that fundamental common law rules governing questions of alleged negligence of the defendant have not been changed. Therefore, this opinion will amplify the discussion of legal principles and apply them in a somewhat different manner but adhere to the result of our former opinion.

The act and its construction by federal courts is of primary importance. We are mindful that the rights which it creates are federal rights governed by federal rather than local rules of law and that the sufficiency of the evidence to establish negligence of defendant under the Act is a federal question. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Bimberg v. Northern Pac. Ry. Co., 217 Minn. 187, 14 N.W.2d 410, 419.

Section 51, Title 45, Railroads, U.S.C.A. provides: 'Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, * * * track, roadbed, * * * or other equipment.' (Italics supplied.)

Section 53 of the same title provides in part: 'In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: * * *.'

Section 54 of the same title, as amended in 1939, also provides: 'That in any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury * * * resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; * * *.' Similar cases were complicated by judicial construction before the 1939 amendment but thereafter they are comparatively simple. In other words, it has now been held that assumption of risk as a defense has been taken out of the act if defendant is negligent; that is, now the employee does not assume the risk of those dangers in his employment which are caused by or result from defendant's negligence. However, it is as important to remember that the employee still assumes the risk of those ordinary dangers in his employment which are naturally inherent in the business and not caused by or the result of defendant's negligence.

The act also authorizes the application of comparative negligence instead of barring the employee from recovery because of contributory negligence which is now useful or available only to mitigate damages. In that connection the rule is that if plaintiff's evidence discloses that the employer is guilty of any negligence, in whole or in part, proximately causing or contributing to the injury the case must be submitted to the jury for decision regardless of plaintiff's negligence.

Recently it has been reaffirmed that the employer's liability must be determined under the general common law rule defining negligence as lack of due care under the circumstances or the failure to do what a reasonable and prudent man would have done or doing what such a person would not have done under the existing circumstances. As stated in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 451, 87 L.Ed. 610, 143 A.L.R. 967: 'A fair generalization of the rule is given in the Senate Committee report on the 1939 amendment: 'In justice, the master ought to be held liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances.''

It is generally held that in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of a negligent act and that it ought to have been foreseen in the light of the attending circumstances. 'Bare possibility is not sufficient. * * * Events too remote to require reasonable prevision need not be anticipated. * * * The carrier's negligence must be a link in an unbroken chain of reasonably foreseeable events.' Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 236, 88 L.Ed. 239.

Thus the premise in cases similar to the one at bar is that in order to recover under the act it is incumbent upon plaintiff to prove by a preponderance of the evidence that the employer was negligent in some manner, as alleged in his petition, and that such negligence was the proximate cause, in whole or in part, of the injuries sustained. In doing so he is required to present probative facts from which both the negligence and the causal relation can be reasonably inferred. An essential requirement is that mere speculation must not be allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 397, 88 L.Ed. 520.

In other words the weight of the evidence under the Act must be more than a scintilla, both upon the question of defendant's negligence and proximate cause, before the case may be properly left to decision of the jury. The applicable rule is that when the evidence is such that without weighing the credibility of the...