Johnson v. The Missouri Pacific R. Co.

Decision Date06 January 1886
Citation26 N.W. 347,18 Neb. 690
PartiesJOHN JOHNSON, ADMINISTRATOR OF THE ESTATE OF OLE NILSSON, PLAINTIFF IN ERROR, v. THE MISSOURI PACIFIC RAILWAY COMPANY IN NEBRASKA, DEFENDANT IN ERROR
CourtNebraska Supreme Court

ERROR to the district court for Douglas county. Tried below before WAKELEY, J.

REVERSED AND REMANDED.

Congdon Clarkson & Hunt, for plaintiff in error.

1. Defendant can not exonerate itself upon the proposition that the accident resulted from the act of God, unless it shows that it was guilty of no act which contributed to the accident. Shearman & Redfield on Neg., p. 6, § 5. Pruitt v. Han. & St. J. R. R., 62 Mo. 527-541. Hutchinson on Carriers, p. 145, § 186. Michaels v N. Y. Cen. R. R., 30 N.Y. 564. Read v Spaulding, 30 N.Y. 630. Bostwick v. B. & O. R. R. Co., 45. N.Y. 712. Condict v. Ry. Co., 54 N.Y. 500. Wolf v. Am. Ex. Co., 43 Mo. 421-425. Nor upon the proposition that intestate was working upon Sunday, contrary to the laws of this state. Comp. Stats., p. 703. Repairing a railroad should certainly be regarded as a work of necessity, and if it were not, the weight of law is against the position of defendant. McGatrick v. Wason, 4 O. S., 566. Sutton v. The Town of Wauwatosa, 29 Wis. 21, and cases cited. Knowlton v. Mil. City Ry. Co., 59 Wis. 278. Nor upon the proposition that road was operated by another corporation, or that another corporation controlled the rolling stock. Abbott v. Johnstown Horse R. R. Co., 80 N.Y. 27. Nelson v. Vt. & Can. R. R. Co., 26 Vt. 717. Railroad Co. v. Brown, 17 Wallace, 445. Rorer on Rys., Vol. 1, p. 607 and cases cited. Ill. Cent. R. R. Co. v. Barron, 5 Wallace, 90.

2. The court below found as a matter of law that Nilsson was guilty of contributory negligence. He was an ignorant Swede, but just arrived in this country. He was inexperienced. He had been ordered by his section boss to place the hand-car on the track for the purpose of going back to Talmage. All supposed the road before them clear. No train was due for hours. He was obliged to hold the hand-car; the storm was severe; and in its rush and fury, with his superior almost within reach, whose duty it was to warn him against any possible danger, he lay down under the car and met his death. It does not follow that because he was killed while in that position, that, under the circumstances of this case, he was guilty of contributory negligence as a matter of law. The question should have been left to the jury. A. & N. R. R. Co. v. Bailey, 11 Neb. 332. C., St. P., M. & O. R. R. Co. v. Lundstrom, 16 Neb. 254. Gray & Bell v. Scott and wf., 66 Pa. 345. Corey v. N. P. Ry. Co., 21 N.W. p. 479. McKean v. B. C., R. & N. R. Co., 55 Ia. 192. Morris v. C., B. & Q. Ry. Co., 45 Ia. 29. Berry v. Cen. Ry. Co., 40 Ia. 564. Bucklew v. Cen. Ia. Ry. Co., 21 N.W. 103. Pringle v. Chi. & R. I., 21 N.W. 108. Crowley v. Burlington C. R., 20 N.W. 467. Buell v. N. Y. Central, 31 N.Y. 314. Miller v. U. P. Ry., 4 McCrary, 115. Miller v. U. P. Ry., 5 McCrary, 300. Bohan v. Mil., L., S. & W. Ry. Co., 58 Wis. 30. Ferguson v. Wis. Central Ry. Co., 23 N.W. 123. Knowlton v. Mil. City Railway Company, 59 Wis. 278. N. W. Railway Company v. Bayfield, 37 Mich. 205. Walsh v. Peet Valve Company, 110 Mass. 23. Strahlendorf v. Rosenthal, 30 Wis. 674. Coombes v. New Bedford Cordage Company, 102 Mass. 572.

Charles Ogden and Everest & Waggener, for defendant in error.

1. There is no allegation in the pleadings nor proof upon the trial that defendant company had in its employ any incompetent servants; therefore the law implies that all legal duties in examination and inspection of the car in question had been exercised and complied with before the accident complained of. 135 Mass. 201. 50 Iowa 680. 1 Am. & Eng. Rwy. Cases, 101. 2 Id., 140. 5 Id., 480. 11 Id., 193. 54 Wis. 257, pp. 267-282.

2. There is no allegation or proof that the car in question was defective, unsafe, or imperfect when received. Kidwell v. Railway Co., 3 Wood U.S.C. C., 313.

3. Defendant company had the right to imply and rely upon it; that when the deceased entered its employ he was a person of ordinary understanding, care, and caution, and would exercise ordinary care to prevent injury to himself. The company could not be required to anticipate that he would place himself in any unnecessary peril or in any unnecessary perilous position. R. R. Co. v. Plunkett, 25 Kansas, 201.

4. The allegations of plaintiff's petition were, that the negligence of defendant company, which caused the injury, was in leaving the car in question on defendant's track, unwatched, and with the brakes unset, on down grade. This the plaintiff had to prove by preponderance of evidence, and to prove the negligence in the manner alleged. Manuel v. Ry. Co., 56 Ia. 655. Haines v. Ry. Co., 41 Ia. 227. Muldowney v. R. R. Co., 32 Ia. 176. Owen v. Owen, 22 Ia. 270. Waldhier v. R. R. Co., 71 Mo. 514. Edens v. R. R. Co., 72 Mo. 212. Price v. Ry. Co., 72 Mo. 414. Ry. Co. v. Troesch, 68 Ill. 545. Ry. Co. v. Foss, 88 Ill. 551.

5. The invariable rule is, that a party whose negligence is the proximate cause of the accident cannot recover for the injury sustained. Fleming v. R. R. Co., 49 Cal. 253. De Ville v. R. R. Co., 50 Cal. 383. Potter v. R. R. Co., 21 Wis. 372. And where, as in this case, the facts are clearly settled and the course which common prudence dictates can be clearly discerned, it was the duty of the court to decide the case as a matter of law. Sherman & Redfield on Negligence, § 11, p. 13. Glassey v. R. R. Co., 57 Pa. 172. R. R. Co. v. McClurg, 56 Pa. 294.

6. While some of the authorities hold that contributory negligence on the part of the plaintiff is a matter of defense to be proved by the defendant, still this rule does not prevent the trial court from directing judgment as in case of nonsuit, if the evidence introduced by plaintiff established the defense of contributory negligence. Hoth v. Pelers, 55 Wis. 405. Schuchardt v. Allens, 1 Wallace, 370. Parks v. Ross, 11 Howard, 362. Bliven v. N. E. Screw Co., 23 Howard, 433. Improvement Co. v. Munson, 14 Wallace, 442. R. R. Co. v. Miller, 25 Mich. 274. Abbett v. Ry. Co., 30 Minn. 482.

7. The rule is well settled, that where it appears by plaintiff's evidence when he rests his case, that his own negligence contributed to the injury for which he sues, that it is the duty of the court to grant a nonsuit. Express Co. v. Nichols, 33 N.J.L. 434. R. R. Co. v. Moore, 4 Zabriskie, 824. Aycriggs Exrs., v. R. R. Co., 30 N.J.L. 460. Harper v. Ry. Co., 32 N.J.L. 88.

OPINION

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 defendant 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 filed 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 Nilsson, deceased, for the recovery of damages alleged to have been sustained by reason of a personal injury inflicted upon the said Nilsson, and by which he was killed. The cause was tried to a jury, who, after hearing the testimony offered by plaintiff, 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 as 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 by depositions, and in part by 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. S. C. & P. R. R. Co., 15 Neb. 583, 19 N.W. 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 & Morton v. Ins. Co., 4 Ohio St. 628. Stockstill v. R. R. Co., 24 Ohio St. 83. Way v. R. R. Co., 35 Iowa 585. Davis v. Steiner, 14 Pa. 275.

The petition, in stating the facts of the accident, alleges,...

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2 cases
  • Johnson v. Mo. Pac. R. Co.
    • United States
    • Nebraska Supreme Court
    • January 6, 1886
    ...18 Neb. 69026 N.W. 347JOHNSON, ADM'R, ETC.,v.MISSOURI PAC. R. CO.Supreme Court of Nebraska.Filed January 6, 1886 ... Error from Douglass county.[26 N.W. 347]Congdon, Clarkson & Hunt, for ... ...
  • Havemeyer v. Paul
    • United States
    • Nebraska Supreme Court
    • June 18, 1895
    ... ... 131; Burge v. Gandy, 41 Neb. 149 ...          Wharton & Baird, contra, cited: Johnson v. Missouri P. R ... Co., 18 Neb. 690; School District v. Caldwell, ... 16 Neb. 68; Van Sant ... ...

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