Erb v. Eggleston

• Citation: 41 Neb. 860,60 N.W. 98
• Parties: ERB v. EGGLESTON.
• Decision Date: 19 September 1894
• Court: Nebraska Supreme Court

41 Neb. 860

60 N.W. 98

ERB

v.EGGLESTON.

Supreme Court of Nebraska.

Sept. 19, 1894.

Syllabus by the Court.

1. Negligence on the part of a railroad company cannot be inferred merely from the fact that the act complained of was unnecessary, nor from the fact that a necessary act was performed in an unnecessary manner. In order to justify the inference of negligence, the commission of the act in the manner in which it was committed must under all circumstances have implied a failure to exercise that degree of care which a prudent person would exercise under similar circumstances.

2. The evidence in this case examined, and held insufficient to establish negligence on the part of the defendant.

Error to district court, Gage county; Appelget, Judge.

Action by Frank Eggleston, a minor, by William S. Wilkins, his next friend, against Newman Erb, receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, for personal injuries caused by defendant's negligence while he was in defendant's employ as a brakeman. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.M. Summerfield and Griggs, Rinaker & Bibb, for plaintiff in error.

Alfred Hazlett, for defendant in error.

IRVINE, C.

Eggleston, a brakeman employed on the Kansas City, Wyandotte & Northwestern Railroad, brought this action against the plaintiff in error, a receiver operating said road, for personal injuries by Eggleston sustained while engaged in his work. There was a verdict and judgment in favor of Eggleston for $16,000, which the receiver by these proceedings seeks to reverse. The only assignment which we shall consider is that the evidence was insufficient to support the verdict. There is no conflict in the evidence so far as it relates to the principal facts surrounding the accident, and there is no great conflict in regard to the details. Eggleston had been employed by the receiver as a brakeman for about three weeks. He had had about two years' experience on other roads in the same line of duty. A freight train designated as No. 104 left Beatrice at 6:40 p. m. for Kansas City. The crew of this train consisted of a conductor, engineer, fireman, and two brakemen; Eggleston being the “rear brakeman,” by which we understand the brakeman posted at or near the rear of the train. The Wyandotte road was operated from Virginia to Beatrice on the tracks of the Chicago, Rock Island & Pacific; but it had in Beatrice certain side tracks of its own, connected by switches with the Rock Island tracks. On the afternoon of October 8, 1890, the engineer, fireman, and two brakemen were engaged in making up train 104, some time prior to the hour of its departure. When the operation begun, the conductor was not present. There is evidence tending to show that he arrived on the scene immediately before the accident, but he took no part in the operation of the crew, and gave no orders. In making up this train, it was customary, after moving the engine from the roundhouse, to pull out from a side track the caboose which was to go with the train, throw the caboose back along another track, and then proceed to pick up the other cars, and move them back and attach them to the caboose. On the day in question, caboose No. 408, which was to go with the train, stood upon the storage track behind another caboose, No. 409. Both cabooses were therefore hauled from the storage track upon the main line. Caboose 408 was then shoved back along the main line, beyond the switch. It next became necessary to replace caboose 409 on the storage track. It is shown to be a common proceeding, in order to accomplish such a movement, to “kick” the car back upon the siding. This operation of kicking is described in the evidence as follows: “The car to be kicked standing between the engine and the switch, the switch is thrown to the proper position, the car uncoupled from the engine, and the engine started, shoving the uncoupled car as it moves. When sufficient momentum has been given the car to move it to the desired point, the movement of the engine is stopped, and the car allowed to move on; some one riding upon the car for the purpose of applying the brakes at the proper place for stopping.” By this process, caboose 408 had been kicked back upon the main line, Eggleston riding upon it, and applying the brakes. Having brought caboose 408 to a stop, Eggleston alighted, and, proceeding towards where the engine and caboose 409 then were, he gave the signal to the other brakeman to pull the pin which connected caboose 409 with the engine. This signal is described in the testimony as a signal to kick, and also a signal indicating that Eggleston was ready to leap upon caboose 409 for the purpose of stopping it. The pin was accordingly pulled, the caboose thus disconnected with the engine, and the kicking process begun. As the car and engine approached Eggleston, he gave a signal to “stop kicking.” He testifies that the engine was at that time 100 feet east of him, and was moving at a rate of 12 to 15 miles per hour. As the caboose passed him, he seized the hand holds, and endeavored to mount. According to his testimony, the speed of the engine had then been checked to such an extent that there was a space of from eight to ten feet between the caboose and the engine. Eggleston's hands were wrenched loose from the hand holds, and he fell upon the track, behind the caboose, and in front of the moving engine, which passed over him, mangling both arms, so that amputation was necessary, and inflicting other severe injuries. Eggleston, when he gave the signal to stop, was so situated that the side of the locomotive cab nearest him was occupied by the fireman. The signal to stop was therefore received by the fireman and communicated by him to the engineer. The foregoing are the main facts disclosed by the evidence. These are brought out, however, with great elaboration and detail, and there is much testimony relating to directions, distances, time, and...