Rathjen v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 20 January 1910
• Docket Number: 15,861
• Citation: 124 N.W. 473,85 Neb. 808
• Parties: JOHN RATHJEN, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

124 N.W. 473

85 Neb. 808

JOHN RATHJEN, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY ET AL., APPELLANTS

No. 15,861

Supreme Court of Nebraska

January 20, 1910

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Greene Breckenridge & Matters, for appellants.

Smyth & Smith, contra.

LETTON J. SEDGWICK, J., not sitting.

OPINION

LETTON, J.

In June, 1906, the plaintiff, who was a track-laborer or section-hand in the employ of the defendant railway company, was engaged in the work of substituting new rails for old upon the west side of the main-line track of the railway extending between Omaha and Gibson. The work was under the general direction of one Ibson, who was road-master for that division, under whom were three section foremen, Olson, who is one of the defendants, Peters and Shimonek. The gangs ordinarily working under each foreman were assembled and worked together under the immediate direction of the three foremen and Ibson. Traffic had been stopped upon that section of track for the purpose of allowing the rails to be changed. The men began work at the Omaha end, and proceeded to draw the spikes upon the inside of the west rail going south until they reached Gibson, when they walked back toward the point of beginning for the purpose of moving the rails. Immediately before the accident Olson, with a helper, had cut the bolts from the angle-bars holding the north end of the first rail to be changed. The rail, apparently on account of heat, had expanded so that its end was tightly wedged against the end of the next rail to the north. This point was near the end of a bridge, and there were guard-rails about a foot inside of the main rails opposite the joint. Olson struck the end of the rail with a maul or sledge-hammer two or three times endeavoring to drive it in, but failed to loosen it. Ibson was standing within a few feet from him at this time, both standing on the outside of the rail. So far the evidence is undisputed. Just at this moment the plaintiff came from the south where he had been pulling spikes. He states that a number of men were on the outside trying to push the rail out, and that, when he reached a point about the center of the rail which Olson had been trying to loosen, he heard Ibson say: "Hurry up, get this rail out," and that Olson said, "Some one get in and lift it up inside." That he immediately jumped inside, put a crowbar he was carrying under the rail, and just as he put his bar down the rail sprang in his direction, knocking him down and inflicting serious and permanent injuries. Another witness, named Fronk, testified that he came upon the scene about the time that Olson was cutting the bolts to the angle-bars; that after this Ibson said, "Throw her out, boys," and that some one, either Olson or Ibson, called out, "Some one get in there and lift or pry it out"; that Rathjen stepped inside to pry it out; that he took his bar and tapped the rail, and, as he tapped it, it flew out. On the other hand, Olson and Ibson both deny ordering any one to go inside. They testify that, when they found the rail was wedged, Olson told one Simpson, who was helping him to cut the bolts, to go to the next joint south and pry or push the rails in at that point. Olson says that, as Simpson started to the joint, Rathjen stepped inside, with his clawbar resting on the guard-rail pointed toward the west rail; that he told him to keep his bar out of there, "but just about the time I said, 'Look out for the bar there,' I seen the rail was moving and I jumped up, but came down too quick." He was struck on the foot by the springing rail, bruising his instep, and breaking his toe. Ibson also testified that Olson or one of his men tried to knock the rail in with the sledge, and that he, Ibson, said, "Get some one with a bar to go to the joint ahead and shove it in, and it will come out here"; that he then stepped between the two guard-rails, and almost immediately was struck across both feet with the rail springing over the guard-rail. He did not hear Olson tell Rathjen "to get the bar out of there," nor hear Olson give any other orders than to the man to go up and shove the rail in. Both he and Olson testify that the guard-rail would have prevented the springing rail from striking them if Rathjen's bar had not been there for the rail to slide upon over the guard-rail. Ibson says: "If there was no bar in here it would be impossible for the rail to get over this guard-rail, as it would hit the guard-rail, but with a bar in here I would not have stood there for all the Burlington road." The testimony clearly shows that when a rail becomes tightly wedged against another by reason of expansion, whether caused by heat or other causes, it is apt to spring a distance of from a few inches to four or five feet when released. It is shown that both Olson and Ibson were aware of the danger from springing rails, and knew that this rail was wedged; while Rathjen testifies that he did not see the joint, and was not aware that this rail was wedged, but thought it might have been imbedded in the ties or held by a broken spike. The jury found for the plaintiff against both defendants.

The defendants first contend "that there is no evidence that by reason of intense heat the rail had expanded, and had become tightly wedged." It seems to us that one cannot read the testimony of Ibson and Olson and reach the conclusion that the rail was not expanded. Olson says that the rail was tight on account of the trains running in one direction and on account of the heat, and that he struck the end rail two or three times after the bolts were cut with a big iron sledge-hammer, but did not get it loose from...