Luckey v. Union Pacific Railroad Company
| Decision Date | 28 May 1928 |
| Docket Number | 25632 |
| Citation | 219 N.W. 802,117 Neb. 85 |
| Parties | EMIL LUCKEY, ADMINISTRATOR, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS: T. B. HORD GRAIN COMPANY ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Platte county: LOUIS LIGHTNER JUDGE. Affirmed.
AFFIRMED.
C. A Magaw, Thomas W. Bockes and Otto F. Walter, for appellants.
Montgomery Hall, Young & Johnsen, contra.
This is an action to recover $ 15,000 in damages for alleged negligence resulting in the death of Joseph Schmidt who left surviving him his dependent widow and six adult children. The administrator of decedent's estate is plaintiff. The Union Pacific Railroad Company, Louis Hostreitter, T. B. Hord Grain Company and Globe Indemnity Company are defendants. For convenience the Union Pacific Railroad Company and the T. B. Hord Grain Company will be called respectively "railroad company" and "grain company." Hostreitter was an employee of the railroad company and Schmidt was an employee of the grain company. The Globe Indemnity Company was the "insurance carrier" of the grain company.
A tier of grain car doors owned by the railroad company and by it stored in piles in the elevator yard of the grain company at Humphrey fell on Schmidt October 22, 1923, and as a result of his injuries he died October 29, 1923. The doors were placed there for the use of the grain company in coopering grain cars.
Plaintiff in his petition pleaded that grain car doors in excess of current needs were stored by the railroad company on the premises of the grain company; that Hostreitter piled them too high in a negligent manner in violation of duties owing to employees of the grain company and that Schmidt, in due course of his employment and in the exercise of due care, went to the piles to get needed doors for the coopering of grain cars; that, while thus engaged, through the negligence pleaded, a tier of the doors fell on him and fatally injured him; that also as a consequence of such negligence the grain company, and the insurance carrier, became liable to the dependent widow for $ 15 a week for 350 weeks; that out of the damages recovered in this action the grain company and the insurance carrier will be entitled to compensation already paid and to unpaid installments for which they are liable.
In an answer and cross-petition the grain company and the insurance carrier admitted the facts pleaded by plaintiff and alleged that by reason of the death of Schmidt his widow and next of kin were damaged to the extent of $ 15,000 and that out of the sum recovered by plaintiff in this action these answering defendants will be entitled to $ 5,891.75 on account of their liability to the dependent widow for compensation.
The railroad company and Hostreitter demurred to the petition and to the cross-petition on the grounds that there is a defect of parties plaintiff; that the action is not prosecuted in the name of the real party in interest; that the grain company and the indemnity company are not proper parties defendant, but, if proper parties, are parties plaintiff.
The demurrer was overruled and the demurrants answered, repeating their demurrer, denying the negligence charged and alleging that the death of Schmidt resulted from his own negligence.
Upon a trial of the issues the jury rendered a verdict in favor of plaintiff and against the railroad company and Hostreitter for $ 2,000. From a judgment on the verdict the judgment defendants appealed. Upon a former hearing in the supreme court the judgment below was reversed and later a reargument was ordered.
It is contended by the railroad company and Hostreitter that the decision below cannot be permitted to stand for the reason that the administrator of decedent's estate is not the proper party plaintiff, being without authority to bring or maintain the action, and that therefore the demurrer should have been sustained and the petition dismissed. The question thus raised was well presented on both sides and requires consideration of a statutory provision in what is known as "Lord Campbell's Act," authorizing an action against a wrongdoer to recover damages for negligence resulting in the death of another person, and also requires consideration of a provision in the workmen's compensation law, an act imposing upon employers liability for compensation to the widow or widower and to the dependents of deceased workmen. Lord Campbell's Act, the earlier of the two statutes, contains among other provisions the following:
The workmen's compensation law provides:
Emil Luckey, administrator of the estate of Joseph Schmidt deceased, brought this suit under Lord Campbell's Act, a Nebraska statute authorizing an action against a wrongdoer for negligence resulting in the death of another person, a legislative remedy having no existence at common law. The demurrer asserts that the administrator is not the proper party plaintiff. Lord Campbell's Act, referring to the action and to the deceased person, provides that "It shall be brought by and in the name of his personal representative." Comp. St. 1922, sec. 1383. The workmen's compensation law, a later act recognizing a remedy for the benefit of an employer liable for compensation, provides that, "Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person." Comp. St. 1922, sec....
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Luckey v. Union Pac. R. Co.
... ... by Emil Luckey, administrator of the estate of Joseph Schmidt, deceased, against the Union Pacific Railroad Company, Louis Hostreitter, and others. From a judgment for plaintiff against the named ... ...