Ellis v. Union Pac. R. Co.

• Decision Date: 20 July 1945
• Docket Number: 31889.
• Citation: 19 N.W.2d 641,146 Neb. 397
• Parties: ELLIS v. UNION PACIFIC R. CO.
• Court: Nebraska Supreme Court

19 N.W.2d 641

146 Neb. 397

ELLIS v. UNION PACIFIC R. CO.

No. 31889.

Supreme Court of Nebraska

July 20, 1945

Syllabus by the Court.

1. A motion for a directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom it is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. In the law of negligence the last clear chance doctrine or rule is that notwithstanding the negligence of a plaintiff, if, at the time the injury was done, it might have been avoided by the exercise of reasonable care on the part of the defendant, the defendant will be liable for the failure to exercise such care.

3. Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the accident, for the doctrine presupposes time for action.

4. In the absence of proof of opportunity to avoid injuring a person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the last clear chance doctrine.

5. A plaintiff will not be permitted to recover under the last clear chance doctrine if he, being in a perilous situation negligently created by himself, had the last clear chance to escape and neglected to do so up to the time of the accident.

6. The doctrine of last clear chance does not apply where the negligence of the injured party is contemporaneous and active up to the time of the accident, and thus contributed to cause the accident.

7. In an action for damages for personal injuries under the Federal Employers' Liability Act where an employer has failed to provide and maintain for an employee a reasonably safe place to work and in consequence and as the proximate cause thereof such employee receives injuries, the employer is required to respond in damages for negligence.

8. The requirement of the Federal Employers' Liability Act that an employer shall furnish employees with a reasonably safe place to work means a reasonably safe place within which they are required to work.

9. Where an employer furnishes to an employee two places to work, one obviously to the employee safe and the other obviously unsafe, with the place of working left to the choice of the employee and he chooses the latter and is injured, the employer cannot be held negligent for failure to furnish a reasonably safe place to work.

10. Where an employee has placed himself in a situation of danger and seeks to avoid the consequences thereof the burden is on him to adduce evidence from which a reasonable inference can be drawn that in the exercise of reasonable care he did not or could not have known of his danger.

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 CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

YEAGER, Justice.

This is an action at law for damages for personal injuries by Newton W Ellis, plaintiff and appellee, against the Union Pacific Railroad Company, a corporation defendant and appellant, under the Feder Employers' Liability Act, 45 U.S.C.A. 51 et seq. The case was tried to a jur and a verdict was returned in favor of plaintiff for $10,000. Judgment was entered on the verdict. Motion for new trial was duly filed and by the court overruled. The defendant has appealed from the judgment and the order overruling the motion for a new trial.

On March 15, 1943, plaintiff was employed by the defendant as an engine foreman in charge of a switching crew on the tracks and in the switching yards of defendant at Seattle, Washington, more particularly known as 'Argo Yards.' As such engine foreman he was in charge of the engineer, fireman and the switchmen and operations were under his immediate control and direction. On the day in question plaintiff began his duties at 4 o'clock p. m. The first work was done a mile or more from the scene of the accident. At sometime after going on duty plaintiff received instructions from proper authority to pick up a loaded car at what is known as the Casein Plant. He proceeded with his engine and crew to the vicinity of a switch from which a spur track lead to the Casein Plant where the engine was stopped. The engine was headed at that time in an easterly direction. The Casein Plant was to the south and the track from the switch to it lead off southwest and then curved to the left around the west side of the building so that at the loading platform the track extended generally north and south. There was a curve in a part of the building to, in part, accommodate or compensate for the curve in the track. Investigation by plaintiff disclosed that there were two cars along side of the Casein Plant and that it was the more distant or the southernmost that was to be removed. On plaintiff's signal the engine backed on the spur and was coupled to the first car and then the two were coupled together whereupon the two cars were removed from the spur and the second detached by plaintiff. Thereafter the switch was lined and the first car was returned or backed into the Casein Plant spur to be spotted along side of the Casein Plant loading platform. At the time, plaintiff was on the ground and had proceeded toward the Casein Plant. He was, at the time of the accident, on the east side of the track and between it and the Casein Plant building. The car came around the curve and plaintiff was caught between it and the building on account of the narrow clearance between the car and the building at that point. He was injured in consequence of being so caught.

The plaintiff predicated his cause of action on negligence on the part of the defendant. The grounds of negligence alleged and necessary to be mentioned herein were: (1) That defendant failed to provide and maintain for plaintiff a reasonably safe place to work, and negligently failed to provide and maintain adequate, sufficient and safe clearance between the track upon which defendant moved its engine and cars and the said Casein Plant building; (2) that the car which came in contact with the plaintiff was too large to safely move on the spur track; (3) that the defendant failed to maintain the spur track in a reasonably safe condition and permitted it to become rough, uneven and unstable and permitted low joints to exist to such an extent as to cause the car in question, while in motion, to list, sway, pitch and lurch in the direction of the building, thereby reducing the clearance between the side of the car and the building; (4) that the defendant moved the car toward and past the building at a dangerous and excessive rate of speed; (5) and that defendant failed to exercise reasonable care for the safety of plaintiff by failing to keep a proper lookout and by negligently failing to warn plaintiff of the danger to which he was subjected while in a position he was necessarily occupying while engaging in switching operations. There was no effort made to sustain the remaining specific charges of negligence.

In its answer the defendant admitted that plaintiff was injured but denied that it was guilty of any negligence. Affirmatively it alleged that the accident and injuries to plaintiff resulted solely and proximately from the carelessness, recklessness and negligence of the plaintiff.

This allegation of negligence by the defendant was denied in a reply by the plaintiff.

As grounds for reversal of the judgment the defendant has set forth in its brief numerous assignments of error. The first five challenge the sufficiency of the evidence, in fact and in law, to permit the submission of the issue or issues made by the pleadings to a jury, or to sustain a verdict thereon in favor of the plaintiff. It therefore becomes necessary to review the evidence pertinent to the allegations of negligence set forth and the assignments of error and to analyze it in the light of applicable legal principles.

For the purposes of this review and analysis and in the light of the contentions of the defendant in this respect we proceed with a full recognition of the well established legal principle that the court must resolve in favor of the plaintiff all factual questions upon which there is a substantial conflict in the evidence. Those questions were for the jury under proper instructions. The rule as stated in the case of Roberts v. Carlson, 142 Neb. 851, 8 N.W.2d 175, 177, is as follows: 'A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.'

From the record it appears that at the time of the accident plaintiff was 42 years of age. He was first employed by the defendant in April, 1942, and continued in its employ until March 15 1943, the date of the accident. He was employed as brakeman and switchman until February, 1943, when he was promoted to the position of engine foreman. He was not always in charge of the same crew or the same engine. His usual assignment did not include the Casein Plant spur. There is a sharp conflict in the evidence on the question of whether or not he had ever participated in switching on this spur until the incidents involved here occurred. His testimony is that he was unfamiliar with the width of the clearance between the spur...