Omaha & R. V. Ry. Co. v. Morgan
| Decision Date | 15 May 1894 |
| Citation | 59 N.W. 81,40 Neb. 604 |
| Court | Nebraska Supreme Court |
| Parties | OMAHA & R. V. RY. CO v. MORGAN. |
1. Where two railroad companies jointly occupy the same property, such as depot grounds, switch yards, and tracks, each company is bound to exercise ordinary care to prevent injuring the employes of the other; and if an employe of one company, while in the discharge of his duties on such grounds, and without negligence on his part, is injured by the negligence of the employes of the other company, such company is liable therefor.
2. Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established. Waterworks Co. v. Dougherty (Neb.) 55 N. W. 1051, followed.
3. The existence of negligence should be proved and passed upon by the jury as any other fact. It is improper to state to the jury a circumstance or group of circumstances as to which there has been evidence on the trial, and instruct that such fact or group of facts amount to negligence per se. At most, a jury should duly be instructed that such circumstances, if established by a preponderance of the evidence, are proper to be considered in determining the existence of negligence. Railroad Co. v. Baier (Neb.) 55 N. W. 913, followed.
4. Two companies -- Omaha Company and St. Paul Company--jointly used and occupied a station, with its switch yard and tracks, in the city of N. A boy 12 years of age and his father were in the employ of the St. Paul Company as car cleaners. Opposite where the boy was engaged in cleaning a car, and beyond a long side track, filled at the time with cars, stood a tool house, in which the employes of the St. Paul Company kept their tools. The cars standing on the side track were no part of any train, nor were the cars at the time being switched on or off the side track. The boy was directed by his father to take some oil cans to the tool house, to do which it was necessary for him to cross the side track. He obeyed, crawling under the cars on the side track, left the cans at the tool house, and started to return to his work and father, crawling, as before, on his hands and knees, under the cars on the side track; and while thus under the cars the employes of the Omaha Company, without giving any signal or warning thereof, suddenly and with great force backed an engine and freight train against the cars standing on the side track, and injured the boy. Held: (1) That the boy, being an employe of the St. Paul Company, was not a trespasser or mere licensee on the railroad grounds, but was rightfully there. (2) That the backing of the freight train and engine, without any signal or warning, against the cars standing on the side track, was evidence of negligence on the part of the Omaha Company, but whether such act was or was not negligence, the time, place, and all the circumstances considered, was a conclusion for the jury. (3) That the boy's crawling under the cars standing on the side track was evidence of negligence on his part, but whether by such act, the time and place and all the circumstances considered, he was guilty or not of contributory negligence, was a conclusion for the jury.
5. The law does not require a child of tender years to exercise the same degree of prudence and care for its safety that is required of a person of mature age and discretion. If such a child exercises the ordinary care and caution reasonable for one of its age and discretion, it satisfies the requirements of the law.
Error to district court, Madison county; Powers, Judge.
Action by George W. Morgan against the Omaha & Republican Valley Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.John M. Thurston, W. R. Kelly, and L. S. Wilson, for plaintiff in error.
Wigton & Whitham, for defendant in error.
George W. Morgan, a boy about 12 years of age, by his next friend, sued the Omaha & Republican Valley Railway Company, hereinafter called the “Omaha Company,” in the district court of Madison county, for damages for a permanent injury, which he alleges he sustained through the negligence of said Omaha Company's agents and employes. Morgan had a verdict and judgment, and the Omaha Company brings the case here for review.
The evidence in the record establishes and tends to establish the following facts: The Omaha Company and the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, hereinafter called the “St. Paul Company,” at the date of the injury of Morgan, owned and used jointly and in common a station, yards, and tracks in the city of Norfolk; the main track of said companies making one continuous line. This main line passed northeast and southwest, on a curve, through a portion of the city of Norfolk, and on the northwest side of the passenger station at that place. Parallel to this main track, and a few feet north and west thereof, was a side or switch track, and parallel thereto was still another side track. These side tracks were 1,630 feet in length. At the time young Morgan was injured--about 7:30 o'clock in the afternoon of the 20th of June, 1890--these side tracks were filled with cars, but the cars were no part of any train. At this time a train of the St. Paul Company occupied the main line near the east end of the station platform. Nearly opposite this St. Paul train, northwest from it, and beyond the two side tracks, stood a tool house of the St. Paul Company, in which the car cleaners and repairers of that company kept their tools, oil cans, etc. Some distance to the southwest of the station stood the engine house used by the Omaha and St. Paul companies for the storing and cleaning of their engines. There was an engine of the Omaha Company in the yards at this time. It was hauling a freight train, and just prior to the accident occupied with its train the main track between the station and the engine house. It was necessary to remove this engine and freight train from its position on the main track between the engine house and station, in order that the engine of the St. Paul Company, which was standing near the station, on the main track, might be taken to the engine house. The cars standing on the middle side track extended some 600 feet, or 20 car lengths, southwest from a line drawn from the tool house to the coaches of the St. Paul Company standing on the main track, and about the same distance north and east of such line. Young Morgan and his father were at the time, and had been for some three years, in the employ of the St. Paul Company as car cleaners in the city of Norfolk. It was, among other things, their duty, on the arrival of a train, to dust and sweep and clean the coaches, to see that they were supplied with coal, and the lamps filled with oil, etc. Immediately prior to the accident young Morgan and his father were engaged in cleaning out the coaches of the St. Paul Company, which had just arrived, and were standing, as stated above, near the station, on the main track. Young Morgan was assisting his father, and working under his directions, but was in the pay and employ of the St. Paul Company. The father directed his boy to take some oil cans to the tool house mentioned above. The boy went across the side tracks, crawling under the cars thereon, to the tool house, left his oil cans there, and attempted to return to his work, and while on his hands and knees, crawling under the drawbar or coupler of two of the freight cars standing on the middle track, the trainmen of the Omaha Company, having pulled the freight train off the main track, backed it up from the southwest towards the northeast against the cars standing on the middle track, and young Morgan was caught by the wheels, and had both his legs broken.
It was usual and customary, and even necessary, for the employes in the yard, while engaged in car cleaning, oiling, and coaling cars, and such like duties, to pass under cars standing on the tracks. The employes of the Omaha Company were aware of this. Although the rules of the Omaha Company required the engine bell to be rung while switching, it was not done at the time of this accident. The engine and freight train were backed with unusual force against the cars on this middle track. In violation of the Omaha Company's rules, the engine at the time was not in charge of the engineer, but of a fireman. The trainmen of of the Omaha Company were in a hurry, endeavoring to clear the main track. The object of backing the freight train onto the middle track was to not take any of the cars standing on that track therefrom. It was unnecessary for the freight train to be backed on the middle track, as it could have been pulled out on the main track beyond the engine house. No signal of any kind was given before backing this freight train against the cars on the middle track. Young Morgan had been trained and instructed to listen for signals before going under cars. At the point he passed under the cars he could not see the engine backing up the middle track southwest of him because of the curve, the distance, and the cars on the track. The first intimation he had that the cars on the middle track were to be moved was the noise of their bumping together while he was under them. The freight engine and train struck the cars standing on the middle track with sufficient force to drive them back northeast half a car's length. The engineer and fireman of the Omaha Company, on the subject of a signal being given prior to the backing of the freight train against the cars on the side track, testified as follows: The fireman: ...
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