O'Hara v. Davis
| Citation | 192 N.W. 215,109 Neb. 615 |
| Decision Date | 15 February 1923 |
| Docket Number | 23057 |
| Parties | JOHN O'HARA, APPELLEE, v. JAMES C. DAVIS, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Affirmed on condition.
N. H Loomis, C. A. Magaw and Edson Rich, for appellant.
John O Yeiser and J. C. Travis, contra.
OPINION
This case is here for the second time. At the first trial evidence was taken and both parties rested. A motion of defendant to direct a verdict in its favor was sustained, and the action dismissed. On appeal to this court the judgment was reversed and the cause remanded for further proceedings. O'Hara v. Hines, 108 Neb. 74, 187 N.W. 643. Upon a second trial plaintiff recovered a judgment for $ 46,840.11, and from this judgment this appeal is taken.
The evidence upon the second trial is substantially the same as that produced at the first trial, the substance of which is set forth at length in the former opinion. There are a few matters, however, which should be noticed. At the former trial there was no evidence as to changes, if any, in the explosiveness of the detonator that may have taken place by reason of the exposure and the treatment it had been subjected to. At this trial there is direct testimony of certain experts that the exposure of the detonator to the air, the loss of part of its contents, and the length of time it had been manufactured would make no difference in regard to its liability to explode, and they express the opinion that it could not be exploded in the manner testified to by plaintiff. In this connection it may be said that those witnesses testified that fulminate of mercury may be exploded by heat, by a scratch, or by a severe blow. As was in effect said in the former opinion, it is not inconceivable that the pulling and twisting of the wires in the detonator may have scratched or caused friction in the fulminate, and this rather than the blow upon the rail, caused the explosion. Another difference in the proof is that in this case there is no exploded detonator in evidence with wires about an inch long, said to have been picked up near the place of the explosion. There was evidence tending to prove that even after the accident plaintiff had said that he saw yellow powder escaping from the cylinder, and that he tapped it upon the rail, which he had denied in his testimony. In the main, however, the testimony is the same as at the former trial, except that the testimony of the experts upon explosives may perhaps be stronger at this trial. There is serious doubt in the mind of the court whether the accident occurred in the manner testified to by the plaintiff, or in that narrated by the witness Berg, who testified that he saw the plaintiff hit the detonator with a hammer. Other witnesses testified that at the time of the explosion the plaintiff was 10 or 12 feet away from where the hammer was lying. Upon the disputed questions of fact the jury had the right to decide, and there is sufficient evidence to sustain their finding that the accident occurred in the manner that plaintiff described.
The principal grounds relied upon for reversal are: That the court had no jurisdiction over the person of the defendant, and over the subject-matter of the suit; and that the evidence is not sufficient to support the verdict.
Error is also assigned as to the giving of instructions by the court, and the refusal to instruct the jury to return a verdict for the defendant. It is also said that it was prejudicial error for the court to embody in its instructions allegations of negligence unsupported by any competent testimony. In this connection it is said that it was not negligence for the defendant to fail to provide wire with which to tie the cloth to the cable, nor for the foreman to direct the use of the wire without examining the same, nor negligence for him to fail to see and note the dangerous condition of the wire. It is pointed out in the former opinion that, under the federal employers' liability act, a fellow workman stands in the shoes of the master, and when he acts for the master in a negligent manner, within the scope of his employment, his negligence is the negligence of the master. The argument in this connection that the workman did not give the wire to plaintiff to promote defendant's business, or in the course of it, but simply to comply with John O'Hara's request, was submitted to the jury, and their verdict settled the question as to whether such conduct of O'Hara was negligent.
Six of the propositions of law relied upon in the appellant's brief and the authorities cited to sustain them, are identically the same as those presented upon the former appeal, and the discussion in the opinion upon that appeal has settled the law as applicable to the facts in this case. There in nothing in the record as now presented which materially detracts from or modifies the force of the facts as recited therein.
It is strongly urged that the court had no jurisdiction of the person of defendant or the subject-matter of the action. The action is brought under the federal employers' liability act. The petition does not allege the place of residence of plaintiff.
By general order No. 18-A of the director general of railroads issued April 18, 1918, general order No. 18, relating to the venue of suits against the director general, was amended to read as follows: "It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose." This provision was ineffectual by a later amendment.
In Alabama & v. R. Co. v. Journey, 257 U.S. 111, 66 L.Ed. 154, 42 S.Ct. 6, the supreme court of the United States held that it was within the power of the director general to prescribe the venue of such suits. Whether this power existed up to that time had been a disputed question. Some of the inferior federal courts had held that the director general had such power, others held to the contrary. Some of the later cases are: Moore & Co. v. Atchison, T. & S. F. R. Co., 174 N.Y.S. 60; Wainwright v. Pennsylvania R. Co., 253 F. 459; Cocker v. New York, O. & W. R. Co., 253 F. 676; Haubert v. Baltimore & O. R. Co., 259 F. 361.
After the petition was filed and summons served in Douglas county, the director general, "appearing specially and for the purpose only of objecting to the jurisdiction of the court over the person of the defendant and over the subject-matter of this action, moves the court to quash the summons herein." As grounds therefor, he alleged that plaintiff did not reside in Douglas county, Nebraska, at the time of the accrual of the cause of action, and that such cause of action did not arise in said county and state. No evidence was presented to prove these allegations, and the motion was properly overruled. The defendant then answered, raising the same objections to the jurisdiction of the court, and also pleading to the merits.
The orders of the director general are concerned with and govern only the venue of the action. If the action had been brought in the county or district in which the plaintiff resided, the fact that the accident took place in another county or district would not divest the court of jurisdiction. The action itself under these orders is therefore so far transitory in its nature as to the subject-matter, and if jurisdiction of the person of the defendant had been obtained either by proper service of summons or voluntary appearance, the question of the liability of the director general would be properly before the court.
Similar provisions as to venue are to be found in the Code of Kentucky. In that state an action against a common carrier for injury to a passenger, or to other person, or his property, must be brought in the county in which the defendant, or one of several defendants, resides, or in which the plaintiff, or his property, is injured, or in which he resides, if he resided in a county through which the carrier passes. The supreme court of Kentucky held in Chesapeake, O. & S.W. R. Co. v. Heath's Admr., 87 Ky. 651, 9 S.W. 832, that said action is both a local and a transitory one. It is transitory because it may be instituted in another county than that in which the tort was committed, and under the Kentucky Code a chief officer, or agent, may be served in any county where he may be found; and it is made local at the option of the plaintiff. It is said: "The action, therefore, being both local and transitory, the common pleas court of McCracken county had jurisdiction of the subject-matter, and could have rendered a personal judgment if there had been any service on the defendant as provided by the Code." It is also said: "The appellant in this case has taken every step to prevent a judgment upon it without service, and has made no plea to the jurisdiction of the court as to the subject-matter, or entered any appearance to the merits by answer or otherwise, until compelled to do so by the trial court." It was held that the special appearance should have been sustained.
Gillen v. Illinois C. R. Co., 137 Ky. 375, 125 S.W. 1047, was an action against a railroad company for damages from a fire started by the negligence of the company, which injured the fences and timber upon the plaintiff's land. The court after quoting section 73 of the Code providing that an action against a carrier for injury to a person, or his property, must be brought in the county in which the defendant resides, or in which the plaintiff, or his property, is...
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