Merkouras v. Chi., B. & Q. R. Co.
| Decision Date | 13 October 1917 |
| Docket Number | No. 19611.,19611. |
| Citation | 101 Neb. 717,164 N.W. 719 |
| Court | Nebraska Supreme Court |
| Parties | MERKOURAS v. CHICAGO, B. & Q. R. CO. |
One should, in his movements, exercise ordinary care for the safety of others; but in doing so he has a right to assume that others will govern their movements as ordinary persons do in exercising care for their own safety. Only those dangers and perils reasonably to be anticipated have to be provided against.
A railroad company, in ordering the movements of its cars, would not anticipate that two men would engage in scuffling upon its track, especially so when the men were its employés, working in its switchyards and momentarily expecting the approach of cars.
A railroad company does not owe its employés, engaged in its yards in which engines are constantly moving, the duty of keeping a constant lookout to warn them of dangers of which they already have knowledge.
A rule of a railroad company, susceptible of two constructions, but which has never by the railroad company been given the construction contended for by the party asserting it, which is contrary to the custom always followed, and which rule was not relied upon by the party, will not be given such construction by the courts.
A party, surprised by the testimony of a witness, whom he has called, may in the discretion of the court be allowed to interrogate him with respect to previous inconsistent statements, for the purpose of probing his recollection and to give him an opportunity to correct his mistake, if he has made one, and also to show, so far as may be, the circumstances which induced the party to call the witness. He is not permitted, however, to prove contradictory statements of his own witness, and discredit him; and it is improper for counsel in argument to go outside the evidence and assert, as of his own knowledge, contradictory statements of the witness.
Appeal from District Court, Lancaster County; Stewart, Judge.
Action by Thomas Merkouras against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Byron Clark and Jesse L. Root, both of Omaha, and Strode & Beghtol and J. B. Strode, all of Lincoln, for appellant.
W. B. Comstock, of Lincoln, for appellee.
Action for damages for loss of part of foot, caused by defendant's negligence. Plaintiff recovered, and defendant appeals.
At the time of the accident, plaintiff, with others, was engaged as an employé of defendant, in its yards at Lincoln, in putting ice in refrigerator cars. A switch track of defendant ran along an elevated platform connected with an icehouse, so that ice could be put from it into the top of the car. A ladder led from the ground to the platform. Two empty cars, designated as “rubbish cars,” were on the track in front of the icehouse, waiting to be moved on to a place further up the track in the yards, where they were to be filled with refuse. It was after the close of the noon hour. The men had been at work in the morning, and were idle, waiting for more refrigerator cars to be moved in place for filling. While waiting, plaintiff and another employé became engaged in wrestling, and in their movements got on the track in front of the rubbish cars in the direction in which they were to be moved; both men being on the ground. There is conflict in the testimony as to how they came to be upon the track in this position. Plaintiff's testimony is that it was not voluntary upon his part; that the other employé, Johnson, had been trying to “joke and play with me”; that Johnson jumped on his back, and brought him down against his will. He did not know, but thought, they might have been in this position 20 minutes before the accident. While they were in this position, a string of 12 refrigerator cars, for which they were waiting, was backed up; it being intended first to move the rubbish cars to their proper place and finally leave the refrigerator cars also in place. When the brakeman on the approaching cars, which had reached the two rubbish cars, had made the coupling, he climbed on the rubbish car, intending to go to the front end of the string of cars as they were moving forward. When he heard the alarm from others that plaintiff was in the precarious position, he at once gave the engineer the stop sign. The engineer stopped the moving cars, but too late to prevent the injury.
Plaintiff contends that defendant failed to exercise ordinary care for his safety, in failing to ascertain that he was on the track at the time, in failing to give warning of the approach of its cars, in failing to stop the string of cars within a reasonable time after learning of plaintiff's situation, and in failing to have some one at the front end of the string of cars as they were moving forward. The evidence does not show that any failure, on the engineer's part, to ring a bell or blow a whistle, caused the accident, even though such failure would have been negligence. Nor does the evidence show that the brakeman, after discovering the situation of the plaintiff, was negligent in giving the stop sign to the engineer. The brakeman, as he approached the rubbish cars for the purpose of making the coupling, and paying attention to the moving cars, would not see the men at the other end, and no doubt, upon hearing the alarm, at once gave the stop sign to the engineer to stop the cars.
[1][2] The question turns on whether the defendant was negligent in failing to discover plaintiff's situation in time to have prevented the accident. A railroad track in use is a dangerous place anywhere--more dangerous in switchyards, where cars are being continually moved from place to place. One who would voluntarily lie down or place himself upon a railroad track when cars are expected to move over it would be guilty of gross negligence, and, ordinarily, would blame himself only if accident resulted. The rule of negligence is one of ordinary care under the circumstances. One should in his movements exercise ordinary care for the safety of others, but in doing so he has a right to assume that others will govern their movements as ordinary persons do in exercising care for their own safety. In other words, only those dangers and perils, reasonably to be anticipated, have to be provided against. A railroad company, in ordering the movements of its cars, would not anticipate that two men would engage in scuffling upon its track, especially so when the men were its employés, working in its switchyards, and momentarily expecting the approach of cars. The fact that one of the men engaged in wrestling was not there by his consent, while it may bear upon the question of negligence upon his part, has no bearing upon the question of negligence on the part of the railway company.
[3][4] The courts recognize the fact that a railroad yard,...
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