Hitte v. Republican Val. R. Co.

• Decision Date: 26 May 1886
• Parties: T. J. HITTE, ADMR., PLAINTIFF IN ERROR, v. THE REPUBLICAN VALLEY RAILROAD COMPANY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

28 N.W. 284

19 Neb. 620

T. J. HITTE, ADMR., PLAINTIFF IN ERROR, v. THE REPUBLICAN VALLEY RAILROAD COMPANY, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 26, 1886

ERROR to the district court for Nemaha county. Tried below before DAVIDSON, J.

AFFIRMED.

Thomas B. Stevenson and Edwin J. Murfin, for plaintiff in error.

T. M Marquett and J. W. Deweese, for defendant in error.

OPINION

COBB J.

This action was brought in the district court of Nemaha county by the plaintiff in error against the defendant in error for damages alleged to have accrued to the plaintiff in error, as administrator, for the negligence of the servants and employes of the defendant railroad company, by means of which the intestate of plaintiff was run over and killed by the cars of defendant.

There was a trial to a jury, which, by direction of the court found a verdict for the defendant.

There is but one question presented by the record in this case to which it is deemed necessary to direct our attention, and that is, whether, under the law and the facts as shown by the evidence preserved in the bill of exceptions, the defendant was responsible for the manner of running and operating the train at the time and place of the accident.

It appears from the testimony of plaintiff's witnesses that the railroad was being built; that the plaintiff's intestate was run over and killed, or, rather, in the language of the witness C. C. Donald, "while they were laying the iron or surfacing." This witness, as well as others, speaks of the train by which Hitte was killed as a construction train. I assume it, then, to have been clearly proved by plaintiff's own witnesses that the road was being constructed, and had not been finished or opened for business or traffic at the time of the injury.

From the evidence of the defendant it appears that part of its road lying between Nemaha City and Tecumseh was built by John Fitzgerald, under contract with the defendant company; that the said road was unfinished and being constructed at the time of the said injury; that the engine and cars by which said injury was inflicted were in the care and custody, and were being run, operated, and managed by the servants and hired men of the said John Fitzgerald, and not of the defendant. The following clauses of the contract between defendant and the said John Fitzgerald are deemed material, as showing the contractual relations between said company and said contractor in reference to the responsible use of the engine and cars, through which the injury in question occurred.

"This indenture and agreement, made this first day of October, 1880, by and between the Republican Valley Railroad Company, party of the first part, and John Fitzgerald, party of the second part, witnesseth: That the party of the second part, in consideration of the covenants, promises, and agreements of and in behalf of the party of the first part, will, and hereby does agree, covenant, and promise, to and with said party of the first part, to construct, that is to grade, bridge, and lay track over that part of the Republican Valley railroad as now located, from a point on the Nebraska railway at or near Nemaha, in Nemaha county, Nebraska, to a point in the north-west quarter of section 28, 15 N., R. 14, and provided said party shall desire it, from the latter point on a line hereafter to be decided upon to a point on the Atchison and Nebraska railway at or near Tecumseh, a distance of 33 miles. * * * All work must be done in strict accordance with the specifications hereto attached, which specifications are a part of this contract, and under the directions and to the satisfaction of the engineer in charge of said railroad to be constructed, whose orders in all matters relating to this contract the second party agrees implicitly to obey. * * * The party of the first part agrees to furnish the necessary cars. * * * The party of the first part agrees to attend to the usual and common repairs of engine and cars necessary during their usage by the party of the second part, but party of the second part will be held responsible for any damages or breakage done to said trains through neglect or disobedience of established rules by itself, agents, or employes, or through defects in road while constructing the same." * * *

The greater part of the brief of plaintiff in error is devoted to a...