O'Neill v. Chi., R. I. & P. R. Co.
| Decision Date | 19 June 1901 |
| Citation | 62 Neb. 358,86 N.W. 1098 |
| Court | Nebraska Supreme Court |
| Parties | O'NEILL v. CHICAGO, R. I. & P. R. CO. |
1. Where ponderous articles, which do not admit of physical attachment to the record proper, are part of the evidence in the case, and are referred to in the bill of exceptions, and articles answering to such reference are filed in this court with the record in the case, and produced at the hearing, bearing the marks of identification of the official reporter of the trial court, and their identity is unchallenged, save in the course of the argument, the articles produced will be treated as a part of the bill of exceptions.
2. An employé of a railroad company has a right to assume that his employer has taken ordinary precautions to protect him from injury in the course of his employment.
3. It is error to hold, as a matter of law, that a brakeman who, in the course of his employment, goes between cars moving at the rate of four or five miles an hour, is guilty of such negligence as will preclude a recovery for injuries sustained by him while in that act, where such injuries result from the negligence of his employer.
4. Negligence of the employer, of which the employé is ignorant, is not one of the risks assumed by the latter by his contract of service.
5. Evidence examined, and held, that the trial court erred in directing a verdict for the defendant.
Error to district court, Sarpy county; Scott, Judge.
Action by Michael O'Neill against the Chicago, Rock Island & Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.M. F. Harrington and James Hassett, for plaintiff in error.
Billingsley & Greene and Woolworth & McHugh, for defendant in error.
This is an action brought by the plaintiff to recover for personal injuries sustained by him by reason of the alleged negligence of the defendant. At the close of the testimony the court directed a verdict for the defendant, and from a judgment rendered thereon the plaintiff prosecutes error to this court.
At the threshold of this case we are met by an objection to the bill of exceptions. The defendant insists that a part of the evidence is omitted therefrom, and for that reason the bill of exceptions should be disregarded. The evidence which it is claimed is omitted consists of ponderous articles, which do not admit of physical attachment to the record proper. These articles are all referred to in the written portion of the bill of exceptions, and articles answering to such reference were filed with the record in the case, and produced at the hearing in this court, bearing the marks of identification of the official reporter of the trial court. Their identity is unchallenged, save in the course of the argument. Under such circumstances, the articles produced will be regarded as a part of the bill of exceptions. The bill of exceptions, therefore, is complete, and will be considered as a part of the record in the case.
Coming down to the merits of the case, it is undisputed that at the time of the injuries complained of the plaintiff was in the service of the defendant in the capacity of brakeman on one of its freight trains. In the course of his employment he stepped between two cars to uncouple them. While between the cars, his foot caught between the guard rail and one of the main rails, and before he could extricate himself he was struck by one of the cars, thrown down, and part of the train passed over both his legs, whereby they were crushed and mangled so that amputation was necessary. The negligence imputed to the defendant by the plaintiff is its omission to fill or block the space between the guard and the main rail of the road. That the guard rail is a source of danger to those employed in operating trains is sufficiently clear from the evidence. It is an ordinary iron rail, varying in length according to the requirements of the particular place. It is placed on the inner side of the main rail, and parallel with it, at points on the road where there is danger of derailment. The space between the guard and main rail is usually about four inches, except at the ends of the former, which are somewhat curved. What renders this contrivance dangerous is that the rails in cross sections are in the form of the letter “T,” and the guard rail being curved, at its ends, from the main rail, the foot of one walking on the track is liable to be forced into the space between the two rails, and, when it is, it is difficult to withdraw it. It sufficiently appears from the evidence that, long prior to the injury complained of, most railway systems had adopted the precaution of blocking the space between the two rails with wood, thereby lessening the danger to the employés. As to the relative advantages and disadvantages of this precaution, the evidence is conflicting; but, the court having directed a verdict, it will suffice for present purposes to say that there was sufficient evidence to sustain a finding that ordinary care and prudence, and a due regard for the safety of its employés, required the defendant to keep such places blocked, and that the injury to the plaintiff would not have occurred but for the omission of the defendant in this regard. In other words, there was sufficient evidence to establish negligence on the part of the defendant. The defendant invokes the rule that a servant, by his contract of service, assumes the risks and dangers incident to his employment, and insists that such rule relieves it of liability for the injury sustained by the plaintiff. That the servant, by his contract of service, assumes certain risks, is true. Just what such risks are, we are not required to determine in this case, because it is sumcient to say that the negligence of his employer is not one of the risks assumed. On the contrary, a servant has a right to assume that his employer has used ordinary care and prudence to insure his safety in the course of his employment. Seley v. Railroad Co. (Utah) 23 Pac. 751;...
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