Johnson v. Mo. Pac. R. Co.

• Decision Date: 06 January 1886
• Citation: Johnson v. Mo. Pac. R. Co., 18 Neb. 690, 26 N.W. 347 (Neb. 1886)
• Parties: JOHNSON, ADM'R, ETC., v. MISSOURI PAC. R. CO.
• Court: Nebraska Supreme Court

18 Neb. 690

26 N.W. 347

JOHNSON, ADM'R, ETC.,

v.MISSOURI PAC. R. CO.

Supreme Court of Nebraska.

Filed January 6, 1886.

Error from Douglass county.

Congdon, Clarkson & Hunt, for plaintiff.

Chas. Ogden and Everest & Waggner, for defendant.

REESE, J.

Counsel for defendant in error, both by his brief and in the oral argument, called the attention of the court to the alleged fact that the amended petition of plaintiff in error, attached to the record, was filed without his knowledge, and without permission from the district court, and presents the case in this court upon the original petition alone, disregarding the amended petition. By an examination of the record we find the amended petition copied into the transcript, duly certified by the clerk of the district court, and treated in all respects as the other proceedings in the case. This being the case, we must treat the amended petition as being properly in the transcript, and properly filed in the district court. If objection is made to pleadings or other papers on file in the district court, the correction must be there made. All presumptions are in favor of the regularity of the proceedings. Irregularities cannot be presumed. They must affirmatively appear, and such irregularity must pertain to the action of the lower court, and not to its officers over which it has control, and whose mistakes and errors, if any, it is the province of that court to correct.

This action was instituted by plaintiff in error as the representative of Ole Nillson, deceased, for the recovery of damages alleged to have been sustained by reason of a personal injury inflicted upon the said Nillson, and by which he was killed. The cause was tried to a jury, who, after hearing the testimony, under the direction of the court, returned a verdict in favor of defendant; the learned judge sitting at the trial holding that the facts proved did not constitute a cause of action in favor of plaintiff. Plaintiff excepted to the instruction of the court, and now, among other things, assigns the same for error. The testimony, as shown by the bill of exceptions, consists, in part, of the testimony of witnesses before the court and jury; in part of depositions; and in part of a stipulation of facts filed in the case, and read to the jury.

The question presented is whether or not the court, upon the close of plaintiff's testimony, and upon motion of defendant, erred in instructing the jury to find for the defendant, upon the theory that the testimony introduced did not make a case upon which the jury should pass. This question was before this court in Smith v. Sioux City & P. R. Co., 15 Neb. 583;S. C. 19 N. W. Rep. 638. In that case it is said that, “by the interposition of the motion, the defendant admitted, not only the truth of the evidence, but the existence of all the facts which the evidence conduces to prove, as well as inferences to be drawn from it. The only question is whether all the material facts alleged in the petition have been supported by some evidence, however slight. It matters not how slight this evidence may have been; if any was produced, the motion should have been overruled, because it is the right of a party to have the weight and sufficiency of his testimony passed upon by the jury.” See, also, Ellis v. Insurance Co., 4 Ohio St. 646;Stockstill v. Railroad Co., 24 Ohio St. 86;Way v. Railroad Co., 35 Iowa, 586; Davis v. Steiner, 14 Pa. St. 275.

The petition, in stating the facts of the accident, alleges, in substance, that at the time of the injury the deceased was in the employ of the defendant, working, with other laborers, in and about the road-bed of defendant as a section hand, under the supervision and direction of a foreman or boss, who was in defendant's employ, and under whose orders the deceased labored; that, in connection with said work, and for the purpose of transporting themselves and tools to the work, the said foreman and laborers used and operated a hand car owned by the defendant; that after they had gone to their labor, at a point on the line of the railroad about one mile south of Talmadge, a station on the road, and had removed the hand car from the track, a violent wind and rain storm came up, and forced them to desist from their work; that, by order of the foreman, the hand car was placed back upon the track, boarded by the laborers, including deceased, and they all started back to Talmadge; that defendant had carelessly left standing upon the side track a freight car, the brakes of which were so out of order and broken that they could not be set, and of which defendant had notice; and that, by force of the wind, this car was driven from the side track onto the main track of the railroad, and down a descending grade, onto and over the hand car, and those thereon, they being so blinded by the storm as to be unable to see it, and by which the deceased was injured, and soon thereafter, from the injuries, died. The petition also negatives any negligence on the part of the deceased.

The stipulation of facts, as well as the testimony, shows substantially that when the storm became violent, the workmen quit work, the foreman ordered the hand car to be replaced upon the track; but at that time the storm was so violent that it could not be propelled against it, and that the deceased then, of his own volition, with several other section men, got under the hand car, and laid down on or between the rails with their faces downward, for the purpose of holding the hand car from being driven south before the storm, and to shelter themselves from the severity of the wind and rain; and, while lying in this condition, a freight car which had been left standing upon the side track at Talmadge was driven by the storm onto the main track, and on a downward grade, at a rapid rate, towards where the deceased and other workmen were, and that it, by force of the storm, was driven onto and against the hand car with such violence as to cause the death of deceased.

The testimony shows that the freight car was standing a distance of from 10 to 20 feet from and south of the other cars upon the side track; that the brakes were not set, and could not be set, owing to the condition of the brake, it being out of repair. As to how long the brake had been broken, the testimony does not show; but it is fully proven that on the day previous the car was unloaded, and the brake at that time was broken so that it was useless. The switch connecting the side track with the main-line track was what is known as a split switch, and permitted the car to pass out onto the main track.

The condition in which this car was left would be sufficient evidence of negligence to warrant the court in submitting that question to the jury, under proper instructions, under the rule in Atchison & N. R. Co. v. Baily, 11 Neb. 332;S. C. 9 N. W. Rep. 50. But it is insisted that the action of the deceased, in placing himself under the car, under the circumstances which he did, was contributory negligence upon his part to such a degree as would prevent his recovery, no matter what the proof of negligence as to the defendant in error might be so long as it was not wanton or willful.

A majority of the court instruct me to say that, in their opinion, the question of negligence on the part of deceased was also one which ought to have been submitted to the jury. At the time of the accident there was no train due. It was on Sunday, and no regular trains were run on that day; yet irregular trains, used in the construction and repair of the road, were liable to pass, ordinarily, at any time. Deceased was under the command of the section boss. By his order the hand car was placed on the track, for the purpose of going back to Talmadge. He had charge and supervision of deceased so far as to control his action in and about the employment. Why he did not direct the hand car to be removed from the track is not shown. He remained standing near the track, and within six feet of the hand car, until the approach of the hand car. Deceased might, to some extent, depend upon him, and others standing by, for notice of an approaching train or other danger; the position of deceased being such that he could not. Deceased was inexperienced, and not acquainted with the English language, which was known to the foreman or section boss. Under the circumstances of the case, it was for the jury to say whether the conduct of the deceased amounted to negligence. Gray v. Scott, 66 Pa. St. 345; McKean v. Railroad Co., 55 Iowa, 192;S. C. 7 N. W. Rep. 505;Morris v. Railroad Co., 45 Iowa, 29;Bohan v. Railroad Co., 58 Wis. 30;S. C. 15 N. W. Rep. 801;Atchison & N. R. Co. v. Baily, supra; Railroad Co. v. Stout, 17 Wall. 657;Railroad Co. v. Kirk, 90 Pa. St. 15.

It is contended that the proof does not show that deceased was under the direction of the foreman, Courtney; and that, under the evidence, he (Courtney) sustained no such relation to deceased as vice-principal of defendant....