Omaha & Republican Valley Railway Company v. Morgan
| Citation | 59 N.W. 81,40 Neb. 604 |
| Decision Date | 15 May 1894 |
| Docket Number | 5217 |
| Parties | OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. GEORGE W. MORGAN |
| Court | Nebraska Supreme Court |
ERROR from the district court of Madison county. Tried below before POWERS, J.
AFFIRMED.
John M Thurston, W. R. Kelly, and L. S. Wilson, for plaintiff in error:
There was not sufficient evidence to support a verdict for the plaintiff, and there was such contributory negligence on his part as should have precluded a recovery under proper instructions of the court.
No negligent and dangerous practice can grow into a binding custom. (Hill v. Portland R. Co., 55 Me. 438; Central Railroad & Banking Co. v. Ryles, 13 S.E. [Ga.], 584.)
While the instructions of the court in a general way, covered the law of negligence and contributory negligence of defendant and plaintiff, they were indefinite and vague as relating to the facts in the case at issue, leaving to the jury to form conclusions where they should have been instructed as a matter of law on vital points at issue. (Toomey v. Southern P. R. Co., 24 P. [Cal.], 1076; Burlington & M. R. R. Co., v. Wendt, 12 Neb. 76; Mulherrin, v. Delaware, L. & W. R. Co., 81 Pa. St., 375; Reading & C. R. R. Co. v. Ritchie, 102 Pa. St., 425.)
A minor is bound to assume all dangers within his comprehension which he voluntarily incurs.
Wigton & Whitham, contra:
Plaintiff had as much right to use and enjoy the privileges of the yard and side tracks as defendant. He was not a trespasser, nor was he a mere licensee, but was there of right in the discharge of his duties, and defendant's employes owed to him the duty of active vigilance, of warning of some kind, before moving the cars among which he was passing while engaged in his work. (1 Thompson, Negligence, 461, 462; Goodfellow v. Boston, H. & E. R. Co., 106 Mass. 461; Noble v. Cunningham, 74 Ill. 51; Pierce, Railroads, 275, 276, 349, 350; Chicago & N. W. R. Co. v. Goebel, 10 N.E. [Ill.], 369, 372; Farley v. Chicago, R. I. & P. R. Co., 9 N.W. [Ia.], 230; Pennsylvania R. Co. v. Backes, 24 N. E. Rep [Ill.], 563.)
Because of the contract relations between the two railroad companies the defendant owed to the plaintiff the same duty to care for his safety that it owes to a passenger. (Patterson, Railroad Accident Law, p. 222.)
A railroad company must provide for a careful lookout in the direction that the train is moving, in places where people, and especially where children, are liable to be upon the track. If they do not, and a person has been injured, then the company may, in the absence of contributory negligence, be held liable. (Butler v. Milwaukee & St. P. R. Co., 28 Wis. 487; Ewen v. Chicago & N. W. R. Co., 38 Wis. 613; Farley v. Chicago, R. I. & P. R. Co., 9 N.W. [Ia.], 230; Frick v. St. Louis, K. C. & N. R. Co., 5 Mo. App., 435; Cheney v. New York C. & H. R. R. Co., 16 Hun [N. Y.], 415; Townley v. Chicago, M. & St. P. R. Co., 11 N.W. [Wis.], 55; Byrne v. New York C. & H. R. R. Co., 10 N.E. [N. Y.], 541; St. Louis, A. & T. R. Co. v. Crosnoe, 10 S.W. [Tex.], 342; Swift v. Staten Island R. T. R. Co., 25 N.E. [N. Y.], 378; Omaha & M. R. Co. v. McDaneld, 31 N.E. [Ind.], 837.)
The relation of master and servant did not exist between plaintiff and defendant, and plaintiff, therefore, did not assume the ordinary risks incident to the work of defendant. (Pennsylvania R. Co. v. Backes, 24 N.E. [Ill.], 563; Shearman & Redfield, Negligence, sec. 101.)
If two companies use the same railroad or station, each, however, employing its servants independently of the other, the one company is liable for the torts of its servants to those of the other in the same manner as to strangers. (Pierce, Railroads, 370; Christman v. Philadelphia & R. R. Co., 21 A. [Pa.], 738; Iltis v. Chicago, M. & St. P. R. Co., 41 N.W. [Minn.], 1040.)
There was no error in giving or refusing instructions. (Johnson v. Missouri P. R. Co., 18 Neb. 690; Atchison & N. R. Co. v. Bailey, 11 Neb. 332; Smith v. Sioux City & P. R. Co., 15 Neb. 583; McGuire v. Chicago, M. & St. P. R. Co., 37 F. 54; Cleveland Rolling Mill Co. v. Corrigan, 20 N.E. [O.], 466; Western & A. R. Co. v. Young, 10 S.E. [Ga.], 197; Swift v. Staten Island R. T. R. Co., 25 N.E. [N. Y.], 378.)
The facts are stated by the commissioner.
George W. Morgan, a boy about twelve 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's 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 six hundred feet, or twenty 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 that 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, amongst 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 draw-bar 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 the Omaha Company were in a hurry, endeavoring to clear the main track. The object of backing the...
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