Missouri Pacific Railway Co. v. Tietken
| Decision Date | 16 September 1896 |
| Docket Number | 6714 |
| Citation | 68 N.W. 336,49 Neb. 130 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY v. JOHN F. TIETKEN |
| Court | Nebraska Supreme Court |
ERROR from the district court of Otoe county. Tried below before CHAPMAN, J.
AFFIRMED.
C. W Seymour, David Kelso, James W. Orr, and B. P. Waggener, for plaintiff in error:
There is no allegation of negligence in the petition which would entitle the plaintiff to recover. (Hunter v. Cooperstown & S. V. R. Co. 112 N.Y. 371; Solomon v. Manhattan R Co. 103 N.Y. 437; Lake Shore & M. S. R. Co. v Pinchin, 13 N.E. 677 [Ind.]; Renner v. Northern P. R. Co. 46 F. 344; Owen v. Hudson R. R. Co. 35 N.Y. 518; Memphis & C. R. Co. v. Copeland, 61 Ala. 376; Stilson v. Hannibal & St. J. R. Co. 67 Mo. 671; Lewis v. Baltimore & O. R. Co. 38 Md. 588; Haldan v. Great Western R. Co. 30 U. C. C. P. 89; Pennsylvania R. Co. v. Henderson, 43 Pa. 449; Southern R. Co. v. Kendrick, 40 Miss. 374; Toledo & W. R. Co. v. Goddard, 25 Ind. 200.)
The petition shows on its face that the plaintiff below was guilty of contributory negligence such as would preclude his recovery. (McCorkle v. Chicago, R. I. & P. R. Co. 61 Iowa 555; Bailey v. Cincinnati, N. O. & T. P. R. Co. 20 S.W. 198; Chicago & N.W. R. Co. v. Scates, 90 Ill. 586; Phillips v. Rensselaer & S. R. Co. 49 N.Y. 177; Morrison v. Erie R. Co. 56 N.Y. 302.)
By the plaintiff's own pleading he shows that his own act was the proximate cause of the injury, and he fails to allege in his petition, as is required in such cases, that what he did in the matter was done in a careful and prudent manner, with due regard to his own safety. (Hoth v. Peters, 55 Wis. 405; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 541; Robinson v. Gary, 28 Ohio St. 241; Baltimore & O. R. Co. v. Whitacre, 35 Ohio St. 627; Kennon v. Gilmer, 4 Mont. 433; Durrell v. Johnson, 31 Neb. 796; City of Lincoln v. Walker, 18 Neb. 244; Batterson v. Chicago & G. T. R. Co. 49 Mich. 184; Johnson v. Boston & M. R. Co. 125 Mass. 79; Morrissey v. Eastern R. Co. 126 Mass. 377; Pennsylvania R. Co. v. Sin Clair, 62 Ind. 301; Kansas P. R. Co. v. Pointer, 14 Kan. 38; Jeffersonville, M. & I. R. Co. v. Goldsmith, 47 Ind. 43; Gregory v. Cleveland, C. C. & I. R. Co. 14 N.E. 228 [Ind.]; Savannah & W. R. Co. v. Meadows, 10 So. 141; Mobile & O. R. Co. v. Stroud, 64 Miss. 784.)
In support of an argument in favor of the contention that the verdict is against the weight of evidence and not supported by the evidence reference is made to the following cases: Omaha & R. V. R. Co. v. Crow, 47 Neb. 84; Ft. Scott, W. & W. R. Co. v. Sparks, 55 Kan. 288.
The verdict of the jury is against the instructions of the court and the judgment should be reversed. (Meyer v. Midland P. R. Co. 2 Neb. 319; Aultman v. Reams, 9 Neb. 487.)
John C. Watson and Charles A. Robbins, contra:
It is culpable negligence on the part of a railroad company for its officers to induce a passenger to leave or board a train while it is in motion. Where a passenger is called upon to act in a sudden emergency, he should not be held to the most rigid accountability for his action. He has a right to assume that it is safe to leave or board a train, when told to do so by those in charge of it. (Bucher v. New York C. & H. R. R. Co. 98 N.Y. 128; Filer v. New York C. R. Co. 49 N.Y. 47; McIntyre v. New York C. R. Co. 37 N.Y. 287; Lent v. New York C. & H. R. R. Co. 120 N.Y. 467.)
There are numerous well-considered cases which hold that it is not negligence for a passenger to leave or board a moving train, where such act is made necessary by the negligence of the railroad company. (Cumberland Valley R. Co. v. Maugans, 61 Md. 53; Pennsylvania R. Co. v. Kilgore, 32 Pa. 292; Swigert v. Hannibal & St. J. R. Co. 75 Mo. 475; Doss v. Missouri, K. & T. R. Co. 59 Mo. 27; Wyatt v. Citizens R. Co. 55 Mo. 485; Loyd v. Hannibal & St. J. R. Co. 53 Mo. 509; Toledo, W. & W. R. Co. v. Baddeley, 54 Ill. 19; Foreman v. Missouri P. R. Co. 23 S.W. 422; Johnson v. West Chester & P. R. Co. 70 Pa. 357.)
The passenger had a right to expect that the defendant had employed a skillful conductor, who would not expose passengers to dangerous risks, and who had sufficient experience and knowledge in his business to correctly advise and direct passengers as to the proper time and manner of alighting safely from the train. (Lambeth v. North Carolina R. Co. 66 N.C. 494; Curtis v. Detroit & M. R. Co. 27 Wis. 158; Swigert v. Hannibal & St. J. R. Co. 75 Mo. 475; McIntyre v. New York C. R. Co. 37 N.Y. 287; Lent v. New York C. & H. R. R. Co. 120 N.Y. 467; Pennsylvania R. Co. v. McCloskey, 23 Pa. 526; Olson v. St. Paul & D. R. Co. 48 N.W. 445 [Minn.].)
A drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire. The carrier cannot, by conditions in such pass, limit its common law liability for injuries received by him resulting from its negligence.
It is not negligence for a passenger to go or remain upon a car, not intended for the use of passengers, in violation of the rules of the railroad company known to the passenger, where those in charge of the train know of the presence of the passenger in such forbidden place, and make no objection thereto. (Creed v. Pennsylvania R. Co. 86 Pa. 139; O'Donnell v. Allegheny Valley R. Co. 59 Pa. 239; Pennsylvania R. Co. v. McCloskey, 23 Pa. 526; Jacobus v. St. Paul & C. R. Co. 20 Minn. 125; Dunn v. Grand Trunk R. Co. 58 Me. 187; Caldwell v. Murphy, 1 Duer [N.Y.] 233; Carroll v. New York & N.H. R. Co. 1 Duer [N.Y.] 571; Washburn v. Nashville & C. R. Co. 3 Head [Tenn.] 638.)
The conductor's conduct was negligent. (Swigert v. Hannibal & St. J. R. Co. 75 Mo. 475; Alexander v. Chicago, R. I. & P. R. Co. 43 Iowa 276.)
The facts are stated by the commissioner.
In this action, which was brought in the district court of Otoe county, plaintiff recovered judgment on the verdict of a jury in the sum of $ 2,500. He alleged in his petition that about October 9, 1890, he shipped over the defendant's road certain live stock from Scio to Chicago; that the train by which the shipment was made stopped at Weeping Water and, as plaintiff was informed by the conductor, twenty minutes would be allowed plaintiff for obtaining a meal; that before said twenty minutes had expired said conductor suddenly and excitedly called out to plaintiff that he must immediately get on the train or be left; that said train was at the time moving slowly and that plaintiff, by reason of believing, relying upon, and attempting to obey the order of said conductor, attempted to board said train moving at a rate of speed unknown to plaintiff, and that, owing to the wrongful acts and negligence of the defendant, plaintiff was thrown in such a manner that the wheels of the cars of said train passed over plaintiff's right foot, necessitating its amputation, and over the large toe of the left foot, whereby its amputation was also rendered necessary. These averments were supplemented by averments of the damage caused which the defendant had refused to pay. By its answer the railroad company denied the above averments and charged that the injuries of plaintiff were attributable to his own negligence. This charge of negligence was denied by plaintiff in his reply.
The questions presented by these error proceedings are, first, was the railroad company guilty of negligence, and second, was the defendant in error guilty of contributory negligence? It has been repeatedly held by this court that issues as to negligence and contributory negligence, where the evidence is so conflicting that from it different minds might draw different conclusions, must be determined by the jury. (Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb. 660, 58 N.W. 1125; Omaha & R. V. R. Co. v. Morgan, 40 Neb. 604, 59 N.W. 81.) As the jury found in favor of the defendant in error, we shall assume as established such pleaded facts as the evidence upon his behalf justified the jury in finding, without undertaking to set out the proofs submitted in rebuttal.
The defendant in error, when he made his shipment at Scio received from the railroad company a contract which entitled him to free transportation in the caboose of the train whereby said shipment was made, that he might in transit give his stock such attention as circumstances might demand. Indorsed on this contract were the following provisions: "We, the undersigned persons in charge of the live stock mentioned in the within contract, in consideration of the free pass granted us by the Missouri Pacific Railway Company, and of the other covenants and agreements contained in said contract, including the rules and regulations at the head hereof and those printed on the back hereof, all which for the consideration aforesaid are hereby accepted by us and made a part of this, our contract, and all the terms and conditions of which we hereby agree to observe and be severally bound by, do hereby expressly agree that during the time we are in charge of said stock, and while we are on our return passage, we shall be deemed employes of said company for the purposes in said contract stated, and that we do agree to assume, and do hereby assume, all risks incident to such employment, and that said company shall in no case be liable to us for any...
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