O'Neill v. Chicago, Rock Island & Pacific Railway Company
| Decision Date | 03 December 1902 |
| Docket Number | 9,992 |
| Citation | 92 N.W. 731,66 Neb. 638 |
| Parties | MICHAEL O'NEILL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Sarpy county. Tried below before SCOTT, J. Rehearing of case reported in 62 Neb. 358. Former judgment vacated and judgment below affirmed.
AFFIRMED.
Michael F. Harrington, for plaintiff in error:
Stepping between moving cars to uncouple them, is not negligence as a matter of law; and the question of fact is for the jury. Belair v. Chicago & N. W. R. Co., 43 Iowa 662.
Every railroad in this state is blocked--not a single exception. The Union Pacific, the Burlington, the Great Northern, the Milwaukee, the Lake Shore and all the great systems of roads are blocked, and have been for years. Blocking is a device which experienced railroad men well know lessens the danger to employees. Blocking is some expense and the shrewd managers of these great lines of transportation would not block the guard-rails and go to the expense of blocking them unless the blocking lessened the danger. The judgment of the Rock Island Company itself, by its conduct in blocking its rails in part before this injury, and in part after this faithful employee had lost both his legs, is proof conclusive of the judgment of the Rock Island Company itself, that blocking lessens the danger.
Evans Woolworth and McHugh (Marcus A. Low, of counsel), contra.
Railroads are not required to adopt every appliance which some roads even a majority of the well-regulated, have incorporated into their system of management. Something must be accorded to diversity of judgment. If many well-regulated railroads abstain from adopting a particular appliance which other roads, even a majority, consider wise precautions and adopt such abstention can not be pronounced, per se, recklessness or negligence. Louisville & N. R. Co. v. Allen, 78 Ala. 494; Georgia P. R. Co. v. Propst, 83 Ala. 518; Wilson v. Louisville & N. R. Co., 85 Ala. 269; Louisville & N. R. Co. v. Hall, 87 Ala. 708, 719, 13 Am. St. Rep. 84; Louisville & N. R. Co. v. Hall, [*] 91 Ala. 112, 24 Am. St. Rep. 863, 870.
Hon. William Vincent Allen, also for defendants in error:
I desire to submit some observations in support of the application for a rehearing before the court takes the case under advisement. I do not expect to add, by the citation of additional authorities, to the labors of the distinguished gentlemen with whom I find myself associated in this case; but I shall take up and consider the case as one of first instance, referring only to such citations as are directly in line with the argument I shall present. I can not be charged with being an overzealous friend of railway corporations, for my boyhood experience in their service led me to believe that very frequently those entrusted with their management are heartless and inconsiderate of the welfare of others, and particularly of employees; and I bear in my breast much of what may be called resentment against that kind of management of these quasi-public institutions conducted by private enterprise, and for private gain, but indispensable in the complex commercial and industrial systems of the nation. No one sympathizes more deeply than I do with the hundreds of thousands of poor men upon whose skill, vigilance and fidelity, depends the successful operation of the railways of the nation, and in whose keeping is annually entrusted the personal safety of millions of men, women and children. Many of these become sacrifices to the dangers and hazards of their occupations; many are killed outright, while thousands are maimed and made helpless and dependent for life. I am of the number, daily growing stronger, more resolute and determined, I rejoice to say, who believe that railways must be owned and operated by the national government before what is properly known as "the railroad question" will have been settled in a way that is just and equitable and duly considerate of the true interests of the public. A railway company is a quasi-public corporation, and may exercise the sovereign power of eminent domain in securing its right of way, depot grounds, and other conveniences, necessary and proper to its successful operation, while in all other material respects it is held in our jurisprudence to be a private company. Courts and lawyers have to deal with railways as they find them, not as they wish they were. The duty of judge and counsel is to search for, and establish, the true relation between these institutions and their employees, and the public. That they are primarily designed by their owners to increase the private fortunes of the latter, will be disputed by no one; but private fortunes can only be increased, and the properties made valuable, by the roads being successfully operated in the interests of the shipping and traveling public. So far as their quasi-public character is concerned, it will not be disputed that they must serve all persons along their respective lines, in carrying freight and passengers, for a reasonable compensation, speedily and safely, and on terms of equality, to their places of destination. In the transportation of freight they are absolute insurers of its safety; in the carriage of passengers their duty is of a high and exacting nature, the slightest negligence rendering them liable, although they do not become insurers of the lives or personal safety of the latter. The duty to freight shippers and the traveling public, is of a higher and more delicate nature than the duty to those not connected with the road and those employed in daily operating its engines and cars.
In Belair v. Chicago & N. W. R. Co., the question involved was whether the proper way to couple a locomotive to a way-car is to stand flat-wise or obliquely. No question was raised or discussed as to whether it was negligence per se to go between moving cars to couple or uncouple them.
The plaintiff's conduct having invited, or contributed to, the injury, that fact will defeat the action, regardless of whether or not the defendant was negligent in not blocking the guard-rail.
The case was argued orally by Harrington, for plaintiff in error, and by McHugh and Allen, contra.
This case was submitted and decided at a former term of the court and an opinion filed on the 19th day of June, 1901. See 62 Neb. 358. Afterwards a motion for a rehearing was granted, and the cause has been exhaustively reargued by the counsel for both parties and resubmitted for our consideration. The vital question in the case is one of extreme importance, not only to the parties thereto and to railroad companies, but to all persons making use of mechanical devices in the conduct of their business, and to their servants and employees and to the public generally. We do not conceive that, in the absence of legislation, any different rule of liability or responsibility is applicable to railroad companies than to other persons under substantially similar circumstances. The plaintiff in error was injured in the service of the company by reason of having one of his feet caught under an unblocked guardrail while he was attempting to uncouple some cars belonging to one of the trains of the defendant. Other circumstances of the accident are set out in the former opinion, but are not required to be repeated here. The jury returned a verdict for the defendant in obedience to a peremptory instruction by the court. The charge of negligence by the company consists in its omission to block the rail. We are convinced that we fell into an error of fact in the statement in the former opinion that "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 employees." A more thorough examination of the record, aided by a more complete analysis thereof by counsel than we were favored with on the former hearing, has disclosed that there were wide differences of opinion between railway companies and their skilled managers with respect to the relative safety to their servants and to the public of the blocked and unblocked guard-rails; that a very large number--perhaps a majority--of the principal railway systems of the country continue the use of unblocked rails; and that in some instances the managers of the companies have used the blocked and unblocked, alternately, because of an inability to satisfy their own minds which, upon the whole, is the safer and more prudent course to pursue. There is also some evidence that in the opinion of some managers the relative safety of the use of the device of blocking, and the contrary, is dependent upon the situation of the road to which it may be applied, and the character of the soil over which the road extends, and the liability of the spaces between the rails becoming filled up with drifting sand and dirt. But the plaintiff offered no evidence to prove what is the effect, if any, of the use of blocks upon the safety of the transportation of persons and property over the railways, or the facility of moving trains. Upon this state of the record can it properly be said that a railroad company is negligent because of using or of failing to use the block? We think not. It is a case not analogous to the use of defective machinery or of omitting the use of a device generally approved and obviously adapted to prevent or lessen a known and specific danger. The rule of law is that in such cases the employer must exercise such care and skill as, under the circumstances, reasonable and ordinary prudence requires to be used. The phraseology by which the rule is variously...
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O'Neill v. Chi., R. I. & P. R. Co.
...66 Neb. 63892 N.W. 731O'NEILLv.CHICAGO, R. I. & P. R. CO.Supreme Court of Nebraska.Dec ... error was injured in the service of the company by reason of having one of his feet caught under ... prior to the injury complained of, most railway systems had adopted the precaution of blocking ... ...