Huxoll v. Union Pacific Railroad Company
| Decision Date | 23 December 1915 |
| Docket Number | 18377 |
| Citation | 155 N.W. 900,99 Neb. 170 |
| Parties | ELLA HUXOLL, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Affirmed.
AFFIRMED.
Edson Rich, A. G. Ellick, E. C. Strode and B. W. Scandrett, for appellant.
Stout Rose & Wells, Hoagland & Hoagland and Wilmer B. Comstock contra.
This is an action to recover damages on account of the death of Fred J. Huxoll, the husband of the plaintiff, by reason of certain alleged acts of negligence on the part of the Union Pacific Railroad Company. Plaintiff, as administrator, recovered judgment for $ 20,000 for the benefit of herself and children. Defendant appeals.
Huxoll left surviving him his widow and two minor children. At the time of his death he lived at North Platte, and was a locomotive engineer in the service of the defendant, running between North Platte and Sidney. On the morning of January 1, 1911, Huxoll, while at Sidney, was called and ordered to take engine No. 1909, to leave at 11:10 A. M., with another engine and run to Perdue to bring in a freight train. The engine was headed westward and was to run backward to Perdue. At the time of the accident he was proceeding to his engine in response to the call. The train he was to move was being used in interstate commerce. The train order gave these engines a clear track and right of way over all trains on the main line. Sidney is a division station, and defendant maintains there a roundhouse, turntable, water-crane, wash-house and switching yards. Near the water-crane there is what is known as a "spot track" on which engines are stationed after being coaled, watered and made ready to be taken out. The water-crane and "spot track" are some distance south and east of the wash-house. In order to reach the engine it was necessary for Huxoll to cross one or more tracks and to proceed some distance eastward, passing the turntable, with the main-line track to the north. On this morning engines 1913 and 1909 were upon the "spot track," 1913 standing at the water-crane and 1909, Huxoll's engine, farther east. The weather was extremely cold, 10 to 15 degrees below zero, and a strong north or northwest wind was blowing. The roundhouse is situated to the south of a bluff, the elevation of which is from 100 to 200 feet in height. It was snowing, and the ground and tracks were covered with snow about two inches deep when undisturbed by the wind. Clouds of smoke from the roundhouse, steam from the engines and snow from the storm were blowing across the yards, and in places it was almost impossible to see more than a foot or two. The water-crane stood upon a small platform about 12 feet long from east to west. There was a pit and drain connecting with a sewer in order to carry off the overflow, but, on account of the intense cold, there was more or less ice around and about the platform. Plaintiff's theory of the case, which is supported to some extent by testimony, is that as Huxoll, in going to his engine, approached the crane and platform, in order to avoid walking upon the ice, he stepped around it upon the main-line track. There was a cloud of fog, steam and smoke at that point. Almost instantly he was struck by an engine running backwards to the west, which gave no signals of its approach, and which was running about eight or ten miles an hour. The whistle was not sounded, and the bell was not rung, the machinery to ring the bell automatically was out of order, and the power brake upon this engine was defective. Huxoll was knocked down, was dragged by the ash pan and brake beams a distance of about 75 feet, and the leading end of the engine moved about 150 feet before it was stopped. He was then extricated, but died soon afterwards.
The specific allegations of negligence in the petition, much abridged, are: Negligence of defendant in maintaining the roundhouse in close proximity to the main-line track and to the water-crane and engine tracks, so that the smoke and steam therefrom enveloped and obscured its engines, and obstructed the view of engine and train movements upon the tracks; negligence in permitting an accumulation of ice about the crane, in permitting the crane to become out of order so as to permit the escape of water on the ground, where it froze and rendered the way slippery and dangerous, making it necessary for Huxoll's safety that he make a slight detour in his course and go upon the main-line track; negligence and carelessness in using in switching an ordinary locomotive with high tank, instead of a switch engine with a sloping tank, so as to allow a free and unobstructed view of the track in either direction, and in failing to station a man on the front end of the engine for the purpose of warning persons upon the track, and it is alleged that "in general and common practice a brakeman or other servant is so stationed for that purpose;" negligence in not providing a foot-board, and in running the engine at a high and dangerous rate of speed, "and not under control." It is also charged by amendment that the power brake on the engine was broken and defective, that the bell was defective and out of repair, and that no warning signals of any kind were given.
The answer, in substance, is a general denial, with a plea of assumption of risk and contributory negligence. An amendment was filed pleading that the acts of negligence set out in the amendment to the petition were not alleged in the original petition and were not charged within two years after such acts are alleged to have occurred.
Defendant assigns 56 errors as ground for the reversal of the judgment. We cannot consider them in detail. Some are complaints of mere technical irregularities of a nature which may and usually do occur in the trial of almost every case where so much testimony was taken. We have passed the day when an error which does not injuriously affect the substantial rights of a party will entitle him to a reversal of the judgment, and it serves no useful purpose for parties to complain of, or for courts to consider and discuss, mere lapses from strict and formal methods of procedure. This applies with most force, perhaps, to assignments of error in rulings upon the admission of evidence. Unless prejudice appears to have resulted from an erroneous ruling of this nature, a judgment will not be reversed upon that ground.
Many assignments of error are made as to the giving and refusal of instructions. The court gave 29 instructions on his own motion. The defendant requested 47. In its charge the court practically eliminated a number of the grounds of negligence charged in the petition. The only questions left were whether the defendant was guilty of negligence in failing to have a lookout on the leading end of the switch engine; in moving it at an excessive rate of speed under the circumstances and in failing to keep it under control; whether the track was obscured by smoke and steam; whether the death of Huxoll resulted in whole or in part from its negligence; whether the power brake of engine No. 213 was in working order at the time of the accident; and, if not in working order, whether such condition contributed to his death.
The complaint is made that the court should have told the jury that Huxoll was guilty of contributory negligence, as a matter of law, and that each of the instructions tendered by defendant should have been given. The instructions tendered by defendant endeavored to separate into distinct elements each charge of negligence made by plaintiff, and requested a specific direction that each of these charges would not warrant a verdict for the plaintiff. Some of these instructions are so clearly erroneous that they are not worthy of consideration and should never have been requested. Such requests entail needless labor upon trial and reviewing courts. An illustration is No. 2, which asked the court to instruct that Huxoll was not engaged in interstate commerce at the time he received the injuries. The substance of some and the identical language of a number of others were adopted by the court and incorporated as a part of its own instructions.
The gist of the requested instructions is contained in defendant's No. 1, that the jury be directed to find for the defendant. The testimony is so conflicting, not only for the reason that the witnesses differ, but because some of the witnesses for each party told materially different stories at different times, that it is almost impossible for a reviewing court, which cannot see the witnesses, to determine what the true facts are. The verdict of the jury must be taken as settling their credibility.
We will endeavor to notice the assignments in the order followed in defendant's brief, but cannot within the proper limits of an opinion discuss them at length. It is contended that the court should not have submitted to the jury any issue as to the condition of the brakes on engine No. 213. There is a sharp conflict in the testimony with respect to the condition of these brakes. Zimmer, the engineer, testified that about 8 o'clock of that morning he noticed...
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Huxoll v. Union Pac. R. Co.
... ... Huxoll, deceased, against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Edson Rich and B. W ... ...