St. Joseph & G. I. R. Co. v. Hedge

• Decision Date: 04 April 1895
• Citation: 44 Neb. 448,62 N.W. 887
• Parties: ST. JOSEPH & G. I. R. CO. v. HEDGE.
• Court: Nebraska Supreme Court

44 Neb. 448

62 N.W. 887

ST. JOSEPH & G. I. R. CO.

v.HEDGE.

Supreme Court of Nebraska.

April 4, 1895.

Syllabus by the Court.

1. Where, in an action sounding in tort, it is shown that, subsequent to the alleged wrongful or negligent act, a new and independent cause had intervened, sufficient of itself to stand for the cause of the injury, the former will be held too remote to be made the basis of a recovery.

2. To have such an effect, however, the intervening cause must be one not procured by the original wrongful act or omission. Where the evidence discloses a succession of intermediate events, each dependent upon the one immediately preceding it, and all depending upon such original act, the latter is, in legal contemplation, the primary cause of the resultant injury.

3. Whether the natural connection of events is maintained or interrupted by the introduction of a new and independent cause is usually a question of fact, and not of law.

4. It is sufficient, under the provisions of section 3, art. 1, c. 72, Comp. St., in an action to recover for injuries received by the plaintiff while a passenger on a railroad train in this state, to prove that such injuries resulted from the operation and management of the road. The law infers negligence from the fact of the injury, and imposes upon the railroad company the burden of proving that the case is within one of the exceptions mentioned in the statute.

5. A common carrier of passengers is liable for personal injuries to passengers produced by the concurrent negligence of its servants and third persons.

6. Independent of the statutory rule, a passenger who is placed in a position of apparent imminent peril through the negligence of a carrier may recover for injuries received while endeavoring to escape, in obedience to the natural instinct of self-preservation, provided he exercise ordinary prudence in view of the circumstances as they appear to him at the time.

7. And such is the rule although it subsequently appears that the danger was apparent only, and not real; since the carrier whose negligence is the proximate cause of the injury cannot complain, on the ground that passengers err in their estimate of the danger confronting them, or the choice of means to insure their safety.

8. Under an allegation that “the braking apparatus of said car * * * was in bad repair, the brake chain broken, and said brake useless for the purpose of stopping said car or controlling its movements,” held not to disclose such a relation of the chain mentioned to the braking apparatus as to warrant the inference that the escape of the car resulted from that cause, alone, and that it was not error to receive evidence tending to prove that the brake rod was broken and useless.

9. While a party will not ordinarily be permitted to lead his own witness, that rule has especial application to the trial court, which may, for sufficient cause, permit leading questions; and its action in that regard presents no ground for reversal, in the absence of a clear abuse of discretion.

10. Mental and bodily suffering is incapable of measurement by any fixed and arbitrary rule, but must, from its nature, depend largely upon the judgment of the jury, governed by the circumstances of each particular case.

11. The plaintiff below jumped from a moving train, in order to escape a threatened collision with a runaway freight car, due to the negligence of the defendant. In jumping, she severely injured her left ankle, and was unable to sleep, on account of pain, for seventy hours, was confined to her bed three weeks, and unable to walk without the assistance of crutches for five months. A surgeon, who examined the injured limb the following day, testified that, from the crepitus or grating sound observable on moving and pressing upon the ankle, there was an evident fracture of the astragalus or ankle bone. At the time of the trial, three years later, her ankle was still enlarged, and extremely sensitive, with partial anchylosis or permanent stiffness of the joint, and evidence tending to prove that such condition, including present lameness, would be of long duration, and probably permanent. Held, that a verdict of $3,000 is not excessive.

Error to district court, Clay county; Hastings, Judge.

Action by Eva Hedge against the St. Joseph & Grand Island Railroad Company for personal injuries. Plaintiff had judgment for $3,000, and defendant brings error. Affirmed.

M. A. Reed, W. S. Pricket, and L. P. Crouch, for plaintiff in error.

J. L. Epperson & Sons and Thos. Ryan, for defendant in error.

POST, J.

On the 2d day of January, 1890, the defendant in error, Mrs. Hedge, at the city of Fairfield, purchased of the plaintiff in error, the St. Joseph & Grand Island Railroad Company (hereafter called the “Railroad Company”), a ticket good from the station above named to the city of Hastings, and took passage on a west-bound freight train, which was also accustomed to carry passengers between said stations. When the train in question had reached a point about one mile east from Hastings, a stop was made, for the purpose of taking on a car loaded with brick then standing on a side track constructed for the accommodation of the proprietor of the brickyards there located. In order to take on the car mentioned, the train was cut so as to leave the caboose and one or two freight cars east of the switch connecting the side track with the main line. The side track is constructed on a grade which inclines towards the main line, so that cars left thereon unsecured will, by force of gravity alone, run down to and upon the main track. To prevent this, a safety switch had been constructed in connection with the side track, so arranged that, when left open, it served to disconnect the siding from the main track; and cars coming down the grade from the brickyards would accordingly be run onto what is known as a “spur,” instead of the main track. But, when closed, said switch served to connect the rails of the siding, thus making a continuous track from the brickyards to the main line. In order to take on the car of brick, it was necessary for the men in charge of the train to move a partially loaded car standing in front thereof. This was accomplished by pulling the two cars mentioned onto the main track, and, after coupling the loaded car into the train, pushing the other back onto the siding, and blocking the wheels with billets of wood, in order to keep it in position. It seems that the point where the last-named car was left was too far above the brickkiln to enable the yardmen to complete their task of filling it. The latter thereupon undertook to move it down the track to its proper place, when it was discovered that the brake rod thereof was broken and dragging, so that it was impossible to hold the car in position by that means, and the billets of wood referred to (one 4 by 4, and the other 2 by 4, inches) proved insufficient for that purpose. In consequence thereof, the car escaped from the men in charge, and, the safety switch above mentioned being still closed, it followed the siding onto the main track, with the result hereafter stated.

While the conductor and brakeman were engaged in an attempt to lock the switch connecting the main track with the siding, the former discovered that the brickyard men were unable to control the car, and that a collision was imminent on account of their inability to close the switch (the lock being out of order), and gave the signal to pull up. His signal seems to have been recognized and obeyed by the engineer, since the train was started, and so nearly cleared the switch that the wild brick car merely struck the iron bar or hand rail at the end of the caboose. There were at that instant three men in the overhead lookout of the caboose, and who were evidently watching the brick car approaching the switch, as indicated by the following quotation from the testimony of Mrs. Hedge, who is strongly corroborated by other witnesses: “Q. What first attracted your attention to this car of brick? A. The first was from hearing remarks made in the caboose by different parties relative to this car. Q. What was said? (Objection. Overruled. Exception.) A. The first is, ‘That is a dangerous switch.’ Q. What else, if you remember? A. That the car was going to get away from the old man; that he could not handle it. * * * Q. What else do you remember being said there about this matter? A. That there was danger, and we had better be getting out of there. * * * I heard that first from the lookout. Q. Did they [the men in the lookout] get down when they made the remark about getting out? A. Yes, sir. Q. Where did they go, if any place? A. They went out. Q. In what manner? A. Hurriedly. Q. What remarks did you hear from others as they went out? (Objected to as incompetent, irrelevant, and immaterial. Overruled. Exception.) A. I heard the remark outside, ‘Jump for your lives!’ * * * Q. Whom was that remark addressed to, if you, as you understood it? A. To ourselves. Q. What were the parties in the lookout doing when that remark was made? A. They were getting out through the narrow passageway. * * * Q. What did they do when they reached the platform? A. I suppose they jumped, but did not see them. Q. Was the car in motion at that time? A. Yes, sir. Q. Where did you find those parties when you reached the platform? A. On the ground. Q. In what positions? A. They were lying down. I cannot say just what position. Q. They were not...