Sullivan v. Chicago & Northwestern Railway Company

• Decision Date: 21 December 1934
• Docket Number: 28831
• Citation: 258 N.W. 38,128 Neb. 92
• Parties: MAURICE E. SULLIVAN, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

258 N.W. 38

128 Neb. 92

MAURICE E. SULLIVAN, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT

No. 28831

Supreme Court of Nebraska

December 21, 1934

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. A stockyard platform at a station of a railway engaged in interstate commerce is part of the equipment or works used for railway purposes, within the meaning of the Federal Employers' Liability Act (45 USCA §§ 51-59).

2. In the interpretation and administration of the Federal Employers' Liability Act, the opinions of the federal courts are binding on state courts when applicable to issues under consideration therein.

3. It is not the duty of a common carrier engaged in interstate commerce by means of a railway to maintain station platforms that are absolutely safe for employees.

4. In the construction and maintenance of platforms at railway stations, the measure of an interstate carrier's duty to employees is reasonable care, having regard to circumstances.

5. Under the Federal Employers' Liability Act, there is generally no liability to an employee for damages arising from dangers that are obvious.

6. Evidence that a railway company maintained a wooden stockyard platform with the end of a plank an inch or a little more above the general level of the floor, where an employee tripped at night and fell, held insufficient to prove actionable negligence in an action by him against the railway company, his employer, to recover damages for personal injuries under the Federal Employers' Liability Act.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by Maurice E. Sullivan against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded, with directions.

Wymer Dressler, Robert D. Neely and Hugo J. Lutz, for appellant.

Brome, Thomas & McGuire and G. H. Seig, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY and DAY, JJ., and ELDRED, District Judge.

OPINION

ROSE, J.

This is an action to recover damages in the sum of $ 45,000 for alleged negligence resulting in personal injuries. Defendant is a common carrier operating a railroad. Plaintiff was a brakeman and a member of a train crew running a regular freight train for defendant out of Boone, Iowa, westward into Nebraska. Plaintiff, while engaged in the duties of his employment, walking toward a hydrant for a supply of water for the train crew, with a jug in one hand and a lantern in the other, about 1:30 o'clock in the morning, August 11, 1931, tripped on and fell from a platform with a floor of wooden planks at Boone, Iowa, onto a steel rail of defendant's stock-loading track, and was severely injured. Employer and employee were engaged in interstate commerce at the time of the accident. The gist of the negligence pleaded in the petition, or the alleged defect due to negligence, was the maintenance of the platform with one end of a plank an inch or two higher than the general level of the floor. The negligence charged was put in issue by formal pleadings.

Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $ 35,000. From a judgment therefor defendant appealed.

It was argued by defendant that plaintiff did not make a prima facie case and that the district court erred in overruling a motion for a nonsuit. This presents the controlling question.

The action was brought under the federal employers' liability act, making an interstate carrier liable to an employee for an injury, "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." U.S. Comp. St. 1916, sec. 8657, 45 U.S.C. A., ch. 2, sec. 51. The platform was part of the equipment or works used for railway purposes. Missouri P. R. Co. v. Aeby, 275 U.S. 426, 72 L.Ed. 351, 48 S.Ct. 177. The platform was located between stockyard chutes and the stock-loading track. The floor was composed of wooden planks laid lengthwise, end to end, parallel with the railway. The planks generally were 16 feet long, 10 inches wide and 3 inches thick. The platform was 8 planks wide and the floor was on a level with the doors of freight cars, or perhaps 4 feet higher than the rail upon which plaintiff fell.

According to plaintiff's version of the facts, as told on the witness-stand, he was a rear brakeman; left the caboose of his train; crossed several switch tracks; went upon the platform; walked toward the water hydrant and, when within a few feet of it, struck a toe on some obstruction near the center of the platform--something above the level of the floor; lost his balance; took two or three stumbling steps without restoring his equilibrium; fell off the platform and struck his back on a steel rail four or five feet below; never used the platform in the daytime; did not know of the defect; next saw the place in November following the accident; identified the spot by the surroundings; found the elevation of the end of the plank above the general level of the platform to be a "little over an inch," or "better than an inch," or "an inch or better"--estimates without actual measurement; platform used for loading and unloading stock and for a walk.

The wife of plaintiff was a witness who visited the scene of the accident two or three days after it occurred; testified she identified the place where plaintiff fell by fragments of the jug 9 or 10 feet from the hydrant; observed the end of a plank a little "better than an inch" above the other planks; nail in one corner near the raised end but not in the other corner; unnailed corner higher; no other obstruction there; measured the difference in elevation with a finger.

Pictures introduced in evidence by plaintiff indicate a substantial platform for railway purposes with a slight elevation of the end of the plank described.

In connection with the law applicable to the controversy, the testimony outlined and all proper inferences of fact deducible in plaintiff's favor from competent evidence on both sides will be accepted as verity for the purpose of determining whether a question for the jury was presented by the record of the trial.

In the interpretation and administration of the federal employers' liability act, the opinions of the supreme court of the United States are binding on state courts when applicable to the issues under consideration therein. It is not the duty of a common carrier engaged in interstate commerce by means of a railway to maintain...