Stewart v. Wabash Railway Company
| Decision Date | 25 March 1921 |
| Docket Number | 21274 |
| Citation | 182 N.W. 496,105 Neb. 812 |
| Parties | HENRY D. STEWART, APPELLEE, v. WABASH RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
N. S Brown and John L. Webster, for appellant.
Gerald F. Harrington, R. M. Johnson and M. F. Harrington, contra.
Appeal from a judgment in favor of plaintiff for damages for personal injuries. Plaintiff was a switch foreman in the freight and passenger yards of the defendant at Council Bluffs, Iowa. He was severely injured by being struck by the handle of a switch lever when he was endeavoring to open a switch upon a "Y" in the yards. Three box cars had been backed from the main line upon the west leg of the "Y" to be fitted with grain doors. Afterwards a number of other cars, variously estimated as from 7 to 8, and from 10 to 12, were backed in, pushing the three cars further along on the "Y." The evidence in behalf of plaintiff tends to prove that the latter cars automatically coupled to the three cars, but that when the engine stopped, the end car of the three became uncoupled and ran toward a switch at the point of the "Y;" that plaintiff saw that as the switch points were set the car would become derailed; that he immediately ran about 40 feet to the switch-stand and attempted to open the switch, when the wheels of the moving car struck the point of the switch, causing the switch-lever to be jerked out of his hand, and to strike him a severe blow in the groin, causing permanent injuries; that the car ran a short distance further and was stopped by another car which stood beyond the switch.
The evidence on behalf of the defendant implies that the accident was caused, not by the breaking loose of a car, but by the failure of the cars that were backed in to couple with the three cars already on the "Y," and that the impact caused the three cars still coupled together to enter the switch-point and throw the lever. This, however, is merely an inference from facts shown. Plaintiff identified the car which entered the switch as car No. 10055. There was evidence in behalf of defendant that no car of this number was in the yards that day, but it was shown by at least one of defendant's witnesses that cars of the Chicago, St. Paul, Minneapolis & Omaha Railway are commonly termed "Omaha" or cars by the railroad men, and that a Chicago, St. Paul, Minneapolis & Omaha car was one of the three cars mentioned.
Defendant's evidence does not disprove that plaintiff was injured by the switch lever, nor that the throwing of the lever was occasioned by the moving of the points of the switch by the wheels of the car. Quite a little time was devoted at the trial with respect to the identity of the car, but we think this was not very material when all the admitted facts are considered. While there is a sharp conflict upon some points in the evidence, we believe it is sufficient to justify the jury in believing that the switch-point was thrown by a car which had become detached from the others by reason of a defective coupling.
The first assignment of error is that the court erred in overruling a plea in bar of defendant. In substance this plea set out that plaintiff filed his petition in the United States District court for the district of Nebraska for damages arising out of the same accident; that a demurrer was sustained in this petition, and a judgment entered on November 10, 1917, which is in full force and effect and is a bar to the prosecution of this action.
On November 7, 1917, plaintiff filed a motion for permission to file, and was given leave to file and did file an amended petition. On December 10, 1917, defendant filed a plea to the jurisdiction, alleging the filing of an amended petition; that this was in effect the commencement of a new action; and that the suit should have been brought in the district where the defendant is a citizen, and not in the district of Nebraska. On February 9, 1918, this motion was overruled. On February 13, 1918, plaintiff moved the court to dismiss the action without prejudice, and on that date the cause was so dismissed.
Appellant now insists that the order sustaining the demurrer and dismissing the cause was a final order. The journal entry is exceedingly brief. It is not stated that the cause is dismissed without prejudice, or with prejudice. We think it susceptible of the construction given to it by the court which made it; that is, that it was merely intended as a formal order sustaining the demurrer. The court did not regard the judgment as being final, because it retained jurisdiction and finally allowed the action to be dismissed without prejudice. So far as the record shows these proceedings were all had at the same term of court. The final judgment allowing the cause to be dismissed without prejudice apparently still stands. To hold that the federal court erred in allowing the amended petition to be filed, and afterwards in dismissing the cause without prejudice, would amount to a review by this court of the adjudications of the United States district court. Some authorities cited by defendant indicate that a federal reviewing court might have found the proceedings subsequent to the order made on November 10 erroneous. While the question is not entirely free from doubt, we construe the order as did the court which made it, and hold that it was not a bar to the present suit.
Plaintiff testified that, under similar circumstances, where a moving car, or cars, approaches a closed switch, unless the switch was open, derailment would probably occur or the company's property would otherwise be injured or destroyed, and it was his duty to open the switch, and that this was the custom in the yards of the defendant. He introduced the testimony of several other switchmen engaged in like work in the yards of various railroads in Omaha, to the effect that the same custom prevailed in the Omaha yards, and in railroad yards generally. The same witnesses were examined with respect to their experiences as to the conditions in automatic couplers, and conditions in tracks, under like circumstances, which would cause cars to become uncoupled. This evidence was objected to on the ground that the matters inquired of are not controlled by any custom in the Omaha or other yards, and bear no relationship to the case on trial, or to the car or coupler in controversy, or to the switch-yards in question, or the happening of the accident involved in this suit. These objections were overruled, and the ruling is assigned as erroneous. The witnesses testified that some of the causes of defective couplers, according to their observation, might be worn knuckles, worn knuckle pins or worn locking blocks, and that when couplers are defective they are more liable to uncouple on a curved track than on a straight one; that such cars are apt to uncouple when there is a stop or a jerk when the slack runs out or in, which has a tendency to put a strain on the knuckles.
Appellant argues that all this testimony is inadmissible for the reasons given in the objections, and that it does not tend to prove that the coupler on the particular car in question was defective, nor that that car became uncoupled, and that it opened up collateral inquiries foreign to the case. It is difficult to draw any hard and fast line as to how far evidence of this kind may be admissible. The question at issue was whether the car became uncoupled through a defect in the coupling. The jury found that the car became uncoupled. Obviously if the coupler had been perfect this would not have happened. We are of the opinion that it was not improper to show that cars with defective couplers would become uncoupled under similar circumstances. Railroad cars and tracks on standard railroad systems are quite similar. It would have been entirely proper to show such occurrences and their causes if they had happened in the yards of defendant at Council Bluffs. Would it make any material difference if the yards did not belong to defendant? There was no direct proof as to a defect in the coupler. The only fact shown was that when the engine stopped the car which had formerly been coupled became detached by force of its momentum. The obvious and fair inference is that the coupler was defective, and the testimony of these witnesses tended to show that under like conditions a like result would follow. We think the evidence was relevant to the question at issue.
In Minneapolis & St. L. R. Co. v. Gotschall, 244 U.S 66, 61 L.Ed. 995, 37 S.Ct. 598, the jury...
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