Lewis v. Union Pacific Railroad Company
| Decision Date | 02 July 1929 |
| Docket Number | 26652 |
| Citation | 226 N.W. 318,118 Neb. 705 |
| Parties | SADIE S. LEWIS, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawson county: ISAAC J. NISLEY JUDGE. Reversed and dismissed.
Judgment of the district court reversed and cause dismissed.
Syllabus by the Court.
" Where two persons were sued as defendants and the verdict was in favor of plaintiff and against one of the defendants, and silent as to the other, and is received by the court, without objections or question by the parties, and there is sufficient proof to justify a verdict in favor of such defendant, the judgment rendered on such verdict will not be reversed on that ground; the presumption being that the jury found in favor of the defendant not referred to in the verdict." Cox v. Ellsworth, 97 Neb. 392, 150 N.W. 197.
A jury may properly return a verdict in favor of a servant and against the master in a negligence case, where contributory negligence is pleaded and proved, if the plaintiff alleges and the evidence supports a finding of other negligence chargeable to the master than that of the servant exonerated by the verdict.
Where buildings obstruct the view of a railroad track, as is claimed by plaintiff in this case, and the deceased is familiar with the location, it is more than slight negligence for one to drive an automobile on said track without looking and listening for an approaching train. It is the duty of the driver of the automobile to have his car under such control that, when he comes to a place where it is possible to see and to hear an approaching train, he can stop it to avoid a collision. Failure to do so is negligence more than slight in comparison with that of the defendant, and will defeat a recovery, even though the whistle was not blown and the bell not rung, or the speed may have been excessive.
In view of the facts disclosed by the record, held, that the negligence of the deceased was more than slight as compared with the negligence of the defendant, and therefore defeats a recovery.
In such a case, it was the duty, of the court, upon motion at the close of the evidence, to direct a verdict for the defendant.
Appeal from District Court, Dawson County; Nisley, Judge.
Action by Sadie S. Lewis, as administratrix with the will annexed of the estate of John S. Lewis, deceased, against the Union Pacific Railroad Company and another. Judgment for plaintiff against defendant named, and such defendant appeals. Reversed, and cause dismissed.
C. A. Magaw, Thomas W. Bockes and T. F. Hamer, for appellant.
Halligan, Beatty & Halligan and W. E. Shuman, contra.
Heard before GOSS, C. J., DEAN, EBERLY and DAY, JJ., and REDICK and SHEPHERD, District Judges.
This case was brought to recover damages for the death of John S. Lewis, whose automobile was struck on February 13, 1925, by a fast mail train of the Union Pacific Railroad Company at a place in Cozad, Nebraska, where the main street, which is also the Lincoln Highway through the town, crosses the defendant's tracks. Sadie S. Lewis, as administratrix, on behalf of herself as widow and for a minor child brings this action against the railroad company and one Getty, who was the engineer in charge of the train. The jury returned a verdict in favor of plaintiff against the defendant railroad company and was silent as to the defendant Getty.
This form of verdict is a question to be considered by us. It was argued to the trial court and also to this court that such a verdict was in effect a verdict in favor of defendant Getty. The motion of Getty for a judgment of dismissal was overruled by the trial court by an order which stated that, "as to him, the cause is retained for trial." The exact question presented is whether a verdict in favor of a plaintiff and against only one of two defendants is, by necessary implication, a verdict in favor of the defendant not named therein. Both the appellant and appellee cite Cox v. Ellsworth, 97 Neb. 392, 150 N.W. 197. There the court held that it was presumed that, where the jury found in favor of a plaintiff and against only one of two or more defendants, said jury found for the defendants not named in the verdict. As suggested in that case, the trial court should not have received such a verdict without correction. The above case seems to be the only expression of our court upon this question, but it is in accord with the weight of authority, as evidenced by the following cases: Begin v. Liederbach Bus Co., 167 Minn. 84, 208 N.W. 546; James v. Evans, 149 F. 136; San Antonio & A. P. R. Co. v. McCammon, 181 S.W. 541; Lawson v. Robinson, 68 Kan. 737, 75 P. 1012; and many others. The logic of the argument of these cases is compelling, and leads us to the conclusion that, when the jury found that one defendant should pay the verdict, by implication, they necessarily released the other defendant. When the trial court refused to enter judgment on the verdict in favor of the defendant Getty, but retained the case for trial as to him, the effect was to grant a new trial. This verdict was received without objection by any of the parties, and the question is not properly presented to this court at this time to review the action of the trial court, in connection with the verdict as to Getty.
We now come to consider the effect of the verdict in favor of Getty on the case as against the defendant Union Pacific Railroad Company. Getty was the engineer in charge of the train involved in the collision. If the plaintiff relies for recovery in this case upon the rule of respondeat superior, and the only negligence of the company charged and proved was the negligence of its engineer, Getty, then such a verdict as we have is inconsistent and must be set aside. "A verdict in favor of one defendant and against another, based upon conflicting evidence, which is the same as to both defendants, cannot be permitted to stand as to either." Gerner v. Yates, 61 Neb. 100, 84 N.W. 596, followed and approved in Mansfield v. Farmers' State Bank, 112 Neb. 583, 200 N.W. 53. However, if there is other and different evidence against one of the defendants and there is actionable negligence against the defendant sufficient to sustain a verdict, it will not be disturbed. Garrison v. Everett, 112 Neb. 230, 199 N.W. 30. In this case, the petition alleges negligence on the part of the railroad company, other than the negligence of its engineer. Evidence was introduced on behalf of plaintiff tending to prove such negligence. The appellant urges that there can be no liability on the part of the master in a case where the servant himself is not liable. It cites numerous cases to support that contention. The cases cited only hold that this is true, when the negligence of the employee is the only negligence charged against the defendant. The appellant cites Zitnik v. Union P. R. Co., 91 Neb. 679, 136 N.W. 995, to support this contention. As pointed out by this court in Hook v. Payne, 109 Neb. 252, 190 N.W. 581, there was no issue of contributory negligence in that case, and the application of the rule of comparative negligence was not involved. Paraphrasing the language of the opinion, the jury may have properly found that there was negligence on...
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Lewis v. Union Pac. R. Co.
... ... than that of the servant exonerated by the verdict.Where buildings obstruct the view of a railroad track, as is claimed by plaintiff in this case, and the deceased is familiar with the location, it ... Lewis, deceased, against the Union Pacific Railroad Company and another. Judgment for plaintiff against defendant named, and such defendant ... ...