Omaha & R. V. Ry. Co. v. Hall

• Decision Date: 21 October 1891
• Citation: 33 Neb. 229,50 N.W. 10
• Parties: OMAHA & R. V. RY. CO. v. HALL.
• Court: Nebraska Supreme Court

33 Neb. 229

50 N.W. 10

OMAHA & R. V. RY. CO.

v.HALL.

Supreme Court of Nebraska.

Oct. 21, 1891.

Syllabus by the Court.

1. It is the duty of a jury to find its verdict in accordance with the law as given in the instructions of the court. When they clearly violate this duty the court should set aside their verdict. The refusal of the court to do so upon proper application is reversible error. See Aultman v. Reams, 9 Neb. 487, 4 N. W. Rep. 81;Meyer v. Railroad Co., 2 Neb. 342.

2. A general verdict which is clearly inconsistent, and in conflict with a special finding of fact submitted to the jury in the same case, should be set aside on motion.

Error to district court, Gage county; BROADY, Judge.

Action by Thomas Hall against the Omaha & Republican Valley Railway Company for damages for personal injuries. Verdict and judgment for plaintiff. Defendant moved for a new trial, which motion being overruled, defendant brings error. Reversed.J. M. Thurston, W. R. Kelly, and J. S. Shropshire, for plaintiff in error.

R. W. Sabin and R. S. Bibb, for defendant in error.

COBB, C. J.

The plaintiff below, in his petition, alleges the incorporation of the defendant; that on the 4th day of February, 1889, he was in the employ of the defendant, and had been for a period of three years; that while in the employment of the defendant he performed the work assigned to him, but, through no fault or negligence of his, one W. H. McCleary, who was also an employe of defendant, and was unloading coal from defendant's cars, carelessly and negligently threw a large and heavy lump of coal upon plaintiff's right hand, crushing the same, breaking the bones thereof, etc.; that during the period of his employment the defendant had retained 25 cents per month from his wages to create a fund for the purpose of paying its surgeons for surgical treatment of its employes who might receive personal injuries while in the service, etc.; that he was directed by the order of the defendant to report to the surgeon for treatment; that he submitted his hand to the examination and treatment of said surgeon; that the said surgeon thereupon set the bones and reduced the fracture, but did the same so carelessly, negligently, and unskillfully that his hand has been crooked and out of joint, and the third and fourth fingers rendered useless, etc., whereby the plaintiff has been greatly injured, and is unable to attend to his ordinary business, to his damage in the sum of $3,000. For answer to this, defendant below made a general denial to the allegations of the petition, and further, that the plaintiff paid the 25 cents charged upon his salary voluntarily, and that the same was used to defray the expenses of his treatment; that he was treated skillfully and carefully, and that the surgeon was a skillful and careful surgeon, and thoroughly competent to treat the injury; that the plaintiff was guilty of contributory negligence. As an additional defense a settlement with the plaintiff for his damages was alleged, and a release signed by him, absolving the defendant from any liability whatever on account of his injuries, was alleged and shown. This was replied to, thus forming the issues upon which the case was tried. There was a verdict for the plaintiff for $500. A motion for a new trial was overruled, and judgment rendered on the verdict. The defendant below alleges the following errors: “(1) The court erred in admitting the reply to Q. 23 put to plaintiff; (2) also to Q. 216 put to Dr. Wells; (3) also to Q. 301 put to Cyrus Richardson, and in refusing to permit Cyrus Richardson to make answer to Q. 310; (4) in refusing to permit an answer to be made by Dr. Galbraith to Q. 693; (5) in overruling the offer of defendant to prove that Dr. Walden was a surgeon of ordinary skill and ability, and was known to be such by each of the several witnesses; (6) in permitting the answers to be taken to Q. 988, 1019, 1027, 1043, as the same appear in the bill of exceptions; (7) in giving to the jury instruction No. 3 requested by the plaintiff; (8) in refusing to give instruction No. 1 requested by the defendant; (9) and instruction No. 3 requested by defendant; (10) and instruction No. 7 requested by defendant; (11) and instruction No. 8 requested by defendant; (12) and instruction No. 9 requested by defendant; (13) and in giving instruction No. 1 of its own motion; (14) and in giving instruction No. 3 of its own motion; (15) the verdict is contrary to law, to the evidence, and to the instructions of the court; (16) that the general verdict is contrary to law; (17) that the general verdict is not sustained by sufficient evidence; (18) that the general verdict is contrary to, and not sustained by, the special finding of the jury; (19) that under the verdict and the special finding returned by the jury the defendant was entitled to judgment, and the court erred in rendering judgment in favor of the plaintiff upon the general verdict; (20) because the facts stated in plaintiff's petition are not sufficient to support a verdict in favor of the plaintiff under the special verdict returned herein; (21) because the court erred in overruling the motion for a new trial.”

Upon the trial the plaintiff testified that on or about the 4th day of February, 1889, he was in the employment of the defendant, and was engaged in building a wall; that at that time he had been in the employment of the defendant for about two years, getting $1.55 per day,--working every day, Sunday included; that his particular business was wiping, but did other work occasionally, or when called upon; that at the time above stated the master mechanic and general foreman of the defendant company, who had charge of the line, and under whose direction plaintiff was working, wanted him to “kind of” superintend the piling of coal; that plaintiff “was simply building a wall and piling coal.” Being requested to explain to the jury about the wall which he said he was building, and the coal which he was piling, he said: “I suppose the ground between the railroad tracks and the pile 25 feet, and we would run three cars on one side of that pile, and then three cars on the other side, and unload so as to build it up even. I was doing the walling and building the wall. I knew that was pretty dangerous myself, and kept pretty close watch, and told them to watch all the time. I could not watch for them, I was standing between a car and pile of coal. I was pulling a piece off the pile to lay on the wall, and a man by the name of McGarvey slung a piece out, and struck me on the hand. I had one hand on the piece of coal, and he threw a piece of coal out and broke this hand.” Being requested to explain to the jury how or to what extent his hand was injured, he answered: “Well, as near as I can tell you, the point of that hand lay literally mashed down. The piece of coal hit me, and mashed this part down, (illustrating.) I happened to have on a pretty heavy mitten, or it would have been worse for me.” The following question was then put to plaintiff: “Question. What injury did it do to your hand?” Objected to by defendant as immaterial and inadmissible under the pleadings, which objection being overruled, he answered: “Answer. Well, as near as I can tell, the point of this large finger is dislocated, also that one, and the smaller ones are broke.” He further testified that he knew that he had to go to a doctor; that he had to go to the office and get a ticket before he could go; that he had to go to Hayes for a ticket; that A. Baty wrote him out a ticket to go to Dr. Walden; that he went up to the office, and Dr. Walden was not in at the time; that Mr. Bates was there, and dressed his hand; that Dr. Walden afterwards told him that Bates would attend to it any time he was absent. To the question, “What was done with it?” he answered: “He took a long piece of cloth, and commenced wrapping it, and wrapped it all around, and put a little piece of cotton batting in my hand, and told me to grasp that, and wrapped a piece of bandage around it, and gave me a bottle of liniment. There was nothing said about the wrist at that time. I don't think there was anything at that time. I did not know myself there was anything but a broken finger.” To the question, “When did you go to see Dr. Walden about it?” he answered: “I think I...