Slayton v. Fremont, E. & M. V. R. Co.

• Decision Date: 05 June 1894
• Citation: 40 Neb. 840,59 N.W. 510
• Court: Nebraska Supreme Court
• Parties: SLAYTON v. FREMONT, E. & M. V. R. CO.

40 Neb. 840

59 N.W. 510

SLAYTON

v.FREMONT, E. & M. V. R. CO.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. Where the evidence showed, without question, that torpedoes necessary to the operation of its railroad were deposited and kept in defendant's untenanted section house,--all the doors and windows of which were securely fastened shut,--and that access to and removal of these torpedoes were effected by children, who unfastened and opened one of the windows for those, among other, improper purposes, held, that the defendant is not liable for an injury caused by the subsequent explosion of one of said torpedoes, procured and removed as aforesaid.

2. The trial judge should, without hesitatation, direct a verdict for the defendant, where there is no evidence to support plaintiff's alleged cause of action.

Error to district court, Brown county; Kinkaid, Judge.

Action by Delos F. Slayton, by his next friend, Emory Slayton, against the Fremont, Elkhorn & Missouri Valley Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.C. H. Bane, for plaintiff in error.

John B. Hawley, B. T. White, L. K. Alder, and W. J. Courtright, for defendant in error.

RYAN, C.

This action was brought by plaintiff in error for injuries sustained by Delos F. Slayton. After all the evidence had been introduced, the court gave the jury the following instructions: “You are instructed that the evidence adduced in this case will not sustain a verdict for the plaintiff, and you are instructed to find and return a verdict for the defendant.” The cause is brought to this court to determine whether the evidence justified the instruction given.

The facts proved (and, for the most part, stated in the identical language in which the evidence is found summarized in the brief of plaintiff in error) were as follows: The defendant occupied and owned a section house within the corporate limits of the village of Ainsworth. This section house was kept, used, and occupied by the defendant's section foreman for the purposes of lodging and boarding section hands in the employ of defendant. It was located on defendant's right of way, and about 40 feet from the railroad track. The section house was occupied by defendant's foreman until some time in the latter part of March, 1890, at which time the foreman obtained from the defendant leave of absence for 30 days, and, having left his goods stored in the said house, he went with his wife and children on a visit to Blair, in this state; and while so absent he engaged work at Blair, and on the 18th of April, 1890. returning to Ainsworth without his family, he packed his goods in the section house, put them on board of the cars, and shipped them to Blair, leaving the section house locked, and its windows fastened,--neither of them, at the time, being broken. The family of the section foreman, at the time he occupied the house in question, consisted of himself, his wife, and one or two small children. When he left the section house, and removed his household goods therefrom, there was left in a closet an open tin box, containing about 25 or 30 torpedoes, one of which caused the injury to plaintiff in error. On the 26th of April, 1890, the section house still being vacant, Ollie Luffborough, aged 12 years, Janie Slayton, aged 10, and Earnest Luffborough, aged 7 years, residing in close proximity to the section house, looking in the window thereof, saw a hatchet, a lantern, and an old boiler in the house. The youngest of these children inserted his fingers through an opening in the glass, drew the bolt that fastened the lower sash, while the other children raised the window, and they all entered the section house. Immediately thereafter, they discovered the torpedoes in the open tin box,--as they say, in a support for a chimney used as a cupboard,--and, not knowing what they were, began to play with them, and pitched several of them into the cellar. Janie Slayton took some of the torpedoes home to play with. The other children took the old hatchet and the old lantern which they found in the house. The children carried these torpedoes some 300 yards distant, to where plaintiff in error then resided, with his parents. The plaintiff in error had been fishing, and returned shortly after the children had carried these torpedoes home. The mother of the children tried to open one of the torpedoes with a case knife. As soon as plaintiff in error came home, his sister told...