Morris v. Mo. Pac. R. Co.

• Decision Date: 16 February 1922
• Docket Number: No. 21744.,21744.
• Citation: 187 N.W. 130,107 Neb. 788
• Parties: MORRIS v. MISSOURI PAC. R. CO. ET AL.
• Court: Nebraska Supreme Court

107 Neb. 788

187 N.W. 130

MORRIS

v.MISSOURI PAC. R. CO. ET AL.

No. 21744.

Supreme Court of Nebraska.

Feb. 16, 1922.

Syllabus by the Court.

The defense of contributory negligence is not available under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Its only effect, where it exists, is to reduce the amount of damages.

The fellow-servant doctrine is not available as a defense under the provisions of said act.

The act expressly makes the common carrier liable for the negligence of its officers, agents, or employees.

There is no evidence in this case that plaintiff was injured because of the violation of any safety appliance statute; therefore the defense, assumption of risk, remains.

A master must exercise reasonable care to furnish a servant suitable and safe tools for the work.

It is the duty of the master to warn and instruct as to defects and dangers of which he knows, or ought, in the exercise of reasonable care and diligence to know, and of which the servant has no knowledge actual or constructive.

Instructions examined, and found not to be prejudicial to appellant.

Affidavits alleging misconduct of opposing counsel, in order to be considered by this court, must be incorporated in and made a part of the bill of exceptions.

The verdict is sustained by sufficient evidence, except as to the amount thereof.

The evidence examined, and the verdict held to be excessive, and a new trial ordered unless a remittitur of $4,000 is filed, in which case the judgment for $8,000 will be affirmed.

Additional Syllabus by Editorial Staff.

In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) the decisions of the Supreme Court of the United States are controlling and the decisions of the federal courts in construing and applying the act will be followed by state courts.

In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) where the evidence was conflicting and the defense of assumption of risk submitted, the jury's verdict must stand since the courts cannot usurp its functions.

Permitting counsel to ask leading questions is left to the discretion of the trial judge and unless an abuse of such discretion is shown the Supreme Court will not interfere.

Appeal from District Court, Cass County; Begley, Judge.

Action by John F. Morris against the Missouri Pacific Railroad Company and another for personal injuries. Verdict and judgment for the plaintiff against Walker D. Hines, Director General of Railroads, and the Director General appeals. Affirmed on condition of filing remittitur.Edward J. White, of St. Louis, Mo., and J. A. C. Kennedy and Yale C. Holland, both of Omaha, for appellant.

A. L. Tidd, of Plattsmouth, for appellee.

Heard before MORRISSEY, C. J., and ALDRICH and FLANSBURG, JJ., and HOSTETLER and MORNING, District Judges.

HOSTETLER, District Judge.

The plaintiff for his cause of action alleges that he was employed on January 10, 1919, as a section hand; that he was inexperienced in said work; that defendants knew this; that prior to January 22, 1919, the day he was injured, defendants furnished a fellow servant with a defective and imperfectly tempered spike maul; that the defective condition of said maul was known to defendants, or could have been known by the exercise of reasonable care; that said maul was rough, worn and chipped on the edge; that defendants knew the dangerous condition of said maul; that defendants did not warn or give him notice of such condition. Plaintiff alleges that the fellow servant to whom said defective maul was furnished placed it between a spike and a rail and directed plaintiff to strike the maul for the purpose of straightening the spike; that plaintiff did so, and that a piece of steel from the defective maul flew into his right eye and destroyed the sight thereof. Plaintiff alleges that the fellow servant failed to warn him that the maul was defective.

Defendants admit the employment of the plaintiff as a section hand; allege that he was familiar with his duties and with the use and nature of spike mauls, and that he knew about the defective condition of the spike maul. The answer further admits that plaintiff got something into his eye that caused the loss of the sight thereof. For further answer defendants deny the allegations of the petition, and allege contributory negligence and assumption of risk.

Plaintiff for reply denies the allegations of the answer, except in so far as they admit the allegations of the petition.

Upon the issues joined trial was had, and the jury returned a verdict for plaintiff and against Walker D. Hines, Director General for $12,000. Upon this verdict judgment was rendered and motion for new trial overruled. Defendant, Hines, prosecutes error to this court.

The plaintiff contends that this action is properly brought under the federal Employers' Liability Act. U. S. Comp. St. §§ 8657-8665.

The defendant in his brief says:

“Both parties concede that the federal employers' liability act controls.”

The legal rights of the parties must be determined by this act. In so far as its provisions apply to the facts in this case, said act is as follows:

“Sec. 8657. Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.”

“Sec. 8659. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee.”

“Sec. 8660. In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee.”

Defendant contends that the evidence is not sufficient to sustain the verdict and judgment. Defendant alleges that there was no evidence to justify the jury in finding that the chip which struck plaintiff in the eye came from the defective maul. Plaintiff testified that he struck the defective maul three times, and that when he made the third stroke he was struck in the eye by a chip which he thought came from the maul, that he did not strike any object other than the maul, that he could not hit the spike.

B. L. Coffman testified that he saw plaintiff hit the maul once, and that he then threw his hand to his eye.

Robert Earle testified that he heard Hinds tell plaintiff to strike the maul.

Defendant's witness, Guy O. Hinds, testified that plaintiff hit the east end of the maul, that is the end with the chips off; he hit it three times and then dropped his maul and threw his hand to his eye.

Dr. J. F. Kelly, the X-ray specialist, testified that he examined plaintiff's eye and that a piece of metal was located in the orbit above the eyeball.

The maul struck by plaintiff showed where several chips had been broken off. Were the jury justified in finding from this evidence that the chip that struck plaintiff in the eye came from the defective maul? There is no evidence that he struck any other object than the defective maul. It is certainly a reasonable conclusion that the chip came from the object he struck, particularly when said object disclosed places where chips had been broken off. It is unreasonable to believe that the chip came from some object he did not strike. The jury drew from the evidence the only reasonable conclusion the evidence would warrant--that the metal chip came from the defective maul. Swain v. Chicago, R. I. & P. R. Co., 187 Iowa, 466, 174 N. W. 386, is an instructive case upon this subject. It is there said:

“Proximate cause is not always capable of direct proof. Indeed, more often than otherwise, it is a matter of deduction or natural inferencefrom the circumstances appearing in evidence. It is no answer to the plaintiff's claim in this respect to say that fragments of rock will sometimes fly under the impact of a pick in perfect condition, and that it is, therefore, possible for plaintiff to have received the injury of which he complains, even if the pick * * * had not been defective. Absolute certainty of proof is not required, and indeed is rarely obtainable. As it has been stated by this court:

‘Proximate cause is probable cause; and the proximate consequence of a given act or omission, as distinguished from a remote consequence, is one which succeeds naturally, in the ordinary course of things.’ ”

Again, defendant alleges that the evidence is insufficient to warrant the jury in finding that the fellow servant, Guy O. Hinds, told plaintiff to hit the defective maul. Plaintiff testified that Hinds told him to hit the maul. He is corroborated by Coffman and Earle, who were in close proximity, who both testify that Hinds told plaintiff to hit the maul. Hinds denies this, and says he told plaintiff to hit the spike. Here were three witnesses against one. To say the least,...