Missouri Pacific Railway Company v. Fox

• Decision Date: 19 September 1900
• Docket Number: 11,112
• Citation: 83 N.W. 744,60 Neb. 531
• Parties: MISSOURI PACIFIC RAILWAY COMPANY v. WILLIAM K. FOX, ADMINISTRATOR OF THE ESTATE OF AMOS THOMPSON, DECEASED
• Court: Nebraska Supreme Court

83 N.W. 744

60 Neb. 531

MISSOURI PACIFIC RAILWAY COMPANY v. WILLIAM K. FOX, ADMINISTRATOR OF THE ESTATE OF AMOS THOMPSON, DECEASED

No. 11,112

Supreme Court of Nebraska

September 19, 1900

ERROR to the district court for Cass county. Tried below before RAMSEY, J. Affirmed.

AFFIRMED.

B. P Waggener, James W. Orr, A. N. Sullivan and C. S. Polk, for plaintiff in error.

Matthew Gering, contra.

HOLCOMB J. SULLIVAN, J. concurring.

OPINION

HOLCOMB, J.

For the third time this action is before this court for consideration, the two former opinions being reported in Thompson v. Missouri P. R. Co. 51 Neb. 527, 71 N.W. 61, and Missouri P. R. Co. v. Fox, 56 Neb. 746, 77 N.W. 130. The action is founded upon the alleged negligence of the railroad company, resulting, as claimed in the petition, in the death of one Amos Thompson, a brakeman in the employ of said company, while in the performance of his duties as such. The acts of negligence pleaded as causing or contributing to the death of Thompson are of a threefold nature. It is asserted that the deceased came to his death in an attempt to make a coupling or connection of a passenger coach to a coal car on the rear end of a freight or accommodation train, then being made up at a station called Union, on the line of said road, and that because of the defective and negligent manner of the construction of the coupling appliances, the improper and negligent construction of a truss-rod or bolt in the end of the coal car,--it being alleged that it was permitted to protrude through the nut in which it was screwed at the end of the car to an unreasonable and unnecessary length,--and the imperfect and improper condition of the road-bed at the place of the accident, the deceased came to his death, the several acts of negligence as alleged causing or contributing to his said death, without fault or negligence on his part.

In the trial first had, upon a peremptory instruction of the court, a verdict was by the jury returned for the defendant company. The peremptory instruction was based upon the conclusion that the evidence failed to sustain the allegations of the petition as to negligence on the part of the company, and was not sufficient to support a judgment in plaintiff's favor. Upon review, by error proceeding, this court in its first opinion upheld the conclusion reached by the trial court on all points presented except as to the sufficiency of the evidence with reference to the manner of the construction of the truss-rod or bolt, and whether, if negligently constructed, it was the proximate cause of the death of Thompson. It was there "held that the case should have been submitted to the jury on the question of negligence in the construction of the car with reference to the bolt, and as to this being the proximate cause of his death, the car not being one with which he was familiar, and it not being shown that such a construction was common among the cars he habitually handled." Says Commissioner IRVINE, at the close of the opinion: "We think in this aspect of the case, and this only, there was evidence which should have gone to the jury as justifying an inference that the construction of the car with the bolt so projecting was a negligent construction, and the proximate cause of Thompson's death." As to the other causes of negligence pleaded in the petition, this court, in the same opinion, announced the rule as follows: "If the machinery, tools, or appliances furnished a servant by his master are obviously defective and dangerous, and the servant, notwithstanding, continues in the service, he thereby assumes the risks of any injury which he may sustain by reason of such defective appliances," following the rule as laid down in Missouri P. R. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044.

The judgment rendered in the first trial being reversed for the reason stated, a new trial was had, in which the jury returned a verdict in favor of the administrator, upon which judgment was rendered and the case again brought here for review, and again reversed. The judgment of reversal was based upon an instruction by the court upon the doctrine of comparative negligence, which it was held did not prevail in this jurisdiction. Error was also found in the admission of certain testimony as expert testimony, which, it was held, was incompetent as such.

In the last trial, the jury again returned a verdict in favor of the administrator of the decedent's estate for the full amount claimed in the petition, and allowed by statute, and we are asked to again review the case.

Numerous alleged errors are assigned as grounds for reversal. It is argued that the trial court erred in submitting to the jury the question of liability of the company by reason of the alleged defective coupling appliances, the imperfect condition of the track at the place of the accident; and in its rulings upon certain instructions relating to both questions. We can, perhaps, save some time by considering these questions together and at the same time make our views sufficiently clear. One of the instructions requested by the company and refused, of which complaint is made, in effect advised the jury that the only question for them to determine was whether the truss-rod or bolt was negligently constructed, and if so, was it the proximate cause of the death of Thompson, and unless both questions were determined in the affirmative, a verdict should be returned for the defendant company. The other, in substance directed that the deceased assumed the risks incident to his employment; that, under the undisputed evidence, he knew the dangers incident to the operation of the coupling appliances, and continued in the company's service without complaint, or promise of change, and that, if they found his death was caused by reason of the coupling appliances slipping by when attempting to make the coupling, then the plaintiff could not recover. An instruction was also requested by the company and refused, which directed the jury to disregard all evidence as to the condition of the track at the place of the accident as a cause of the injury complained of. These instructions were requested upon the assumption that the questions to which they relate have heretofore, in the same case, been decided, and are within the rule of "the law of the case," and to support this view our attention is called to the opinion first delivered by this court in the present case. As we have heretofore stated, it was therein held that, on the question of the alleged negligent construction of the truss-rod or bolt, the evidence in that trial was sufficient to warrant a submission to the jury as to the proper inference to be drawn therefrom; or, to put it another way, under the record as then presented, the evidence alone upon the question of alleged negligent construction of the truss-rod or bolt, and whether or not, if negligently constructed, it was the proximate cause of Thompson's death, was such as to require its submission to the jury for their determination, the refusal of which was prejudicial error. In discussing the evidence preserved in the record of that trial, Mr. Commissioner IRVINE, who wrote the opinion, in speaking with reference to the coupling appliances, says: "So far as we have stated the evidence, we think it tends in nowise to disclose a cause of action. It falls clearly within the rule that if the machinery, tools, or appliances furnished a servant by his master are obviously defective and dangerous, and the servant, notwithstanding, continues in the service, he thereby assumed the risks of any injury which he may sustain by reason of such defective appliances." And again he says: "It is also alleged that the track at the point referred to was defective because of improper ballast; but there is no evidence to show that the method of ballasting employed was improper, or that it increased the hazard to employes; nor is it shown that the accident to Thompson was caused or contributed to in any way by the condition of the track." The conclusions reached were arrived at from an examination of the evidence then before the court. We are unable to say from the record now before us that the evidence now presented is not materially different from what it was on the first trial of the case. The evidence in different cases, and in different trials of the same case, may, and often does, differ in many essential particulars. It may shift and change as the current of a stream in a bed of sand. Not only may changes occur by reason of newly-discovered evidence, new witnesses whose testimony may supply a missing link, but often those having the management of a case turn the current of evidence in one direction at one time, and in an entirely new channel at another. If the evidence is the same, or substantially so, and made to thus appear, doubtless the rule would apply. Whether or not it is the same, we are unable to say from the record before us, which is now to guide us in our examination. It is but a fair and legitimate presumption to say that the trial court, in passing upon the instructions requested, and having before him the evidence in both trials, found a material difference in the testimony in the last trial from that of the first, and, therefore, determined that the opinion regarding the matter, announced in the first appeal, did not apply to the testimony as then existing. If called upon, or if it became necessary, we could say, from an examination of the record before us, whether a cause of action was proven regarding either of the questions under consideration, but the question being presented in the way it is, this is not required. The rule sought to be invoked is based upon the many utterances of this court, upon the proposition that a...