Sioux City & P. R. Co. v. Smith

• Decision Date: 05 January 1888
• Citation: 22 Neb. 775,36 N.W. 285
• Court: Nebraska Supreme Court
• Parties: SIOUX CITY & P. R. CO. v. SMITH.

22 Neb. 775

36 N.W. 285

SIOUX CITY & P. R. CO.

v.SMITH.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

The foreman of a company of men engaged in the business of repairing bridges, water tanks, and telegraph lines on a line of railway, who has power to control and direct the movements of his men, will render the company liable for acts of negligence committed by him in the course of his employment, whereby one of the men under his control, without his fault, is injured. ¹

A company of men, under the control of a foreman, engaged in the business of repairing bridges, water tanks, and telegraph lines along a line of railway, in going to or from their labor on a hand car on such railway are under the control of such foreman, and his principal is liable for his negligence occurring in the course of his employment.

Instructions set out in the opinion held to have been properly given.

Verdict held to be sustained by sufficient evidence.

Error to district court, Platte county; POST, Judge.

Action by William G. Smith, against the Sioux City & Pacific Railroad Company, to recover for a personal injury caused by the alleged negligence of the foreman of a company of men, of whom plaintiff was one, engaged in repairing bridges, etc., on defendant's line of road. Verdict and judgment for plaintiff, and defendant brings error.J. B. Hawley, H. C. Brome, and Joy, Wright & Hudson, for plaintiff in error.

Wigton & Whitham and W. M. Robertson, for defendant in error.

MAXWELL, C. J.

This case was before this court in 1884, and is reported in 15 Neb. 583, 19 N. W. Rep. 638, the judgment of the court below being reversed. The action is brought to recover for the alleged negligence of one King, whereby the plaintiff below sustained damages. The cause of action is stated in the petition, as follows: “Said W. King, at said time, as such superintendent and foreman, had charge and control of said hand car, and while thus having charge and control of said hand car at said time, defendant and said King negligently ordered plaintiff and others to pump said hand car up to Blair behind a freight train, then starting for Blair on said railroad, and negligently ordered and permitted plaintiff and others to hold to the way car on the rear of said freight train while passing over said railroad, and negligently failed to inform plaintiff of the danger, if any there was, of so propelling said hand car at that time and place, plaintiff being ignorant of any such danger, and negligently failed to order plaintiff to let go of said way car before arriving at the curve in said road, and before the train was running at a dangerous speed, and before the accident occurred, and negligently managed and controlled the running of said hand car while passing over said road from the Missouri river to the place of the injury herein complained of, and negligently applied the brake to said hand car, while the same was in rapid motion, and negligently failed to inform plaintiff that the brake was about to be applied to the hand car before the application of the same, by reason of which negligent conduct plaintiff was thrown from said hand car, and greatly injured in his head and eyes, and has been ever since the said eighteenth day of August, 1880, and still is, sick and maimed, and has suffered, and still does suffer, greatly in mind and body, and ever since said day has been unable to perform any labor or earn any money, except the sum of $4, and is incapacitated for labor in the future, and has been compelled to expend the sum of $185 for medical services and attendance. The plaintiff has sustained damages in the premises in the sum of twenty-five thousand dollars.” The railroad company, in its answer, “admits that on said day and year W. King was in the employ of defendant, and that he was assisting in the construction and repair of bridges and water tanks; but denies that he was superintendent of said work, and foreman of said body of workmen at the time and as in said petition alleged.” There are certain other admissions, which need not be noticed, and specific and general denials of the facts stated in the petition. On the trial of the cause the jury returned a verdict in favor of Smith for the sum of $10,000, upon which judgment was rendered. In addition to the general verdict, the jury were required to answer certain questions, which they did as follows: “Had the plaintiff commenced to fall when King applied the brake to the hand car? No. Had the plaintiff's eyes been sore or inflamed before the accident complained of occurred? No. Do you find that the present diseased condition of plaintiff's eyes is the result or consequence of defendant's wrongful and negligent act? Yes. Geo. W. Wescott, Foreman.”

1. The errors assigned in this court by the railroad company may be grouped under three heads: First, that the evidence is not sufficient to sustain the verdict; second, that the injury to Smith was not the result of being thrown from the hand car; and, third, error in giving and refusing instructions. The testimony tends to show that Smith commenced to work for the railroad company under Mr. King, as foreman, in November, 1879, and that he continued in such employment under Mr. King until the time of the accident; that the business in which they were engaged was repairing bridges, landings, water tanks, and the telegraph line. The company seem to have been known as the “tank, bridge, and telegraph gang.” On the day the accident occurred the company in question was engaged in making a 60 foot mast on the west side of the Missouri river, at or near the Blair landing, for the purpose of running telegraph wires across the river; that the track, at the point indicated, ran nearly north and south for some considerable distance, and then curved nearly due west, and ran into the city of Blair; that there is an up grade all the way from where the parties were at work to said city; that on the day above stated, shortly after six o'clock P. M., King, the foreman, directed his company, including Smith, to place the hand car on which they were accustomed to travel on the track, and that there was a freight train a short distance ahead, going up to Blair, to run the hand car up to the train and be towed up by it, the train at that time running from one to two miles per hour. There was a strong wind blowing from the northwest at the time. The speed of the train gradually increased, and, as it neared the curve turning west to the city of Blair, it was running from six to seven or eight or nine miles per hour, the witnesses disagreeing as to the exact rate of speed. When the hand car was run up behind the train, three of the company, including Smith, with the assent of King, if not by his direction, took hold of various parts of the rear part of the way car so as to propel the hand car by means of the train. As the train approached the curve, King, fearing to go around the curve at the high rate of...