St. Joseph & Grand Island Railroad Company v. Hedge
| Decision Date | 04 April 1895 |
| Docket Number | 6310 |
| Parties | ST. JOSEPH & GRAND ISLAND RAILROAD COMPANY v. EVA HEDGE |
| Court | Nebraska Supreme Court |
ERROR from the district court for Clay county. Tried below before HASTINGS, J.
AFFIRMED.
M. A Reed, W. S. Prickett, and L. P. Crouch, for plaintiff in error:
When the injury happened the persons through whose instrumentality it was inflicted must have been engaged in doing an act for the person sought to be charged with liability. (Wood, Law of Master & Servant, sec. 281; Roddy v. Missouri P. R Co., 104 Mo. 246; Hitte v. Republican V. R Co., 19 Neb. 620; Meyer v. Midland P. R. Co., 2 Neb. 319; Stevenson v. Chicago & A. R. Co., 18 F. 493.)
If subsequent to the original wrongful or negligent act a new cause has intervened of itself sufficient to stand as the cause of the misfortune, the former act or cause must be considered too remote.
The defendant in error was without legal justification in exposing herself to the hazard of jumping from the moving train. (Coulter v. American M. U. Express Co., 56 N.Y. 585; Gulf, C. & S. F. R. Co. v. Wallen, 65 Tex. 568; Chicago, R. I. & P. R. Co. v. Felton, 33 Am. & Eng. R. Cas. [Ill.], 533; Kleiber v. People's R. Co., 107 Mo. 240; Gumz v. Chicago, M. & St. P. R. Co., 10 N.W. [Wis.], 13.
It is error to introduce evidence of carelessness and negligence not pleaded, as it introduces an issue not raised by the pleadings. Having specifically alleged certain acts of negligence, proof of others was error. (Ravenscraft v. Missouri P. R. Co., 27 Mo. App., 617; Waldhier v. Hannibal & St. J. R. Co., 71 Mo. 514; Schneider v. Missouri P. R. Co., 75 Mo. 296; Alabama G. S. R. Co. v. Richie, 12 So. Rep. [Ala.], 612.)
The damages assessed by the jury are excessive. (Klein v. Jewett, 26 N.J.Eq. 474; Tuttle v. Chicago, R. I. & P. C. Co., 42 Iowa 518; Northern C. R. Co. v. Mills, 16 Md. 355; Wyandotte v. Agan, 37 Albany L. J., 38; Fuller v. Naugatuck R. Co., 21 Conn. 557; Baltimore C. P. R. Co. v. Kemp, 61 Md. 74; City of Atlanta v. Martin, 13 S.E. [Ga.], 805; Smith v. City of Des Moines, 51 N.W. [Ia.], 77; Girard v. St. Louis Car Wheel Co., 46 Mo. App., 79; Wesley v. Chicago, St. P. & K. C. R. Co., 51 N.W. [Ia.], 163; City of La Salle v. Porterfield, 38 Ill.App. 553; Buck v. People's S. R. & E. L. & P. R. Co., 18 S.W. [Mo.], 1090.)
Thomas Ryan and Epperson & Sons, contra:
A railroad company is liable for an injury sustained by a passenger in leaping from a train, although if he had remained in the cars he would have been uninjured, if the leaping was rendered an act of reasonable precaution on such passenger's part on account of his perilous position through the fault of the company or its servants. (Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332; Southwestern R. Co. v. Paulk, 24 Ga. 356; Buel v. New York C. R. Co., 31 N.Y. 314; Caswell v. Boston & W. R. Corp., 98 Mass. 194; Twomley v. Central Park, N. & E. R. R. Co., 69 N.Y. 158; Galena & C. U. R. Co. v. Yarwood, 17 Ill. 509; Schultz v. Chicago & N. W. R. Co., 44 Wis. 638; Missouri P. R. Co. v. Baier, 37 Neb. 235; Galena & C. U. R. Co. v. Fay, 16 Ill. 558.)
The verdict is not excessive (
POST, J. RYAN and RAGAN, CC., not sitting.
The facts are stated in the opinion.
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 brick yards 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 toward 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 brick yards 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 brick yard 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 thereof 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 brick-kiln 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 four by four and the other two by four 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 brick yard 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), 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 upright?
A. No, sir; they were not standing up.
Q. Who was with you at the time?
A. Mrs. Dinsmore.
Q. What did she do?
A. She jumped out from the train just ahead of me. * * *
Q. What happened to you when you jumped?
A. I do not know.
Q. What is the first thing you can recollect?
A. The first thing I can remember is they were gathering around me and I was trying to get up.
The following is a quotation from the testimony of Mrs. Dinsmore:
Q. What was the condition of the caboose in that respect at the time of the speaking of the remark? [Referring to the character of the switch.]
A. It was standing still.
Q. What occurred afterward?
A. The engine started up so quickly that I nearly fell on the stove. I took my seat, and just as I took...
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