Tobler v. Union Stockyards Co.

• Decision Date: 19 November 1909
• Docket Number: No. 15,821.,15,821.
• Citation: 85 Neb. 413,123 N.W. 461
• Parties: TOBLER v. UNION STOCKYARDS CO., LIMITED.
• Court: Nebraska Supreme Court

85 Neb. 413

123 N.W. 461

TOBLER

v.UNION STOCKYARDS CO., LIMITED.

No. 15,821.

Supreme Court of Nebraska.

Nov. 19, 1909.

Syllabus by the Court.

The admission of immaterial evidence is not a ground for reversal unless it appears to have influenced the jury to the prejudice of the complaining party.

In entering judgment on a verdict, the clerk should compute interest thereon from the date of its rendition, and not from the first day of the term. A mistake in computation of interest should be corrected by the district court on motion, and is not a ground for a reversal of the judgment.

Stating the issues to the jury by copying the pleadings in the instructions is a practice not to be commended; but, where it appears that such a course has not resulted in prejudice to the rights of the complaining party, it is not a sufficient ground for reversal.

An employé is entitled to assume that his employer has used due care to provide reasonably safe appliances for the doing of his work. Knowledge of the increased hazard resulting from the negligent location of a structure in dangerous proximity to a railroad track will not be imputed to an employé, using ordinary diligence to avoid it if properly located, because he was aware of its existence and general location; and unless from the undisputed facts the court can declare, as a matter of law, that the employé actually had or was chargeable with such knowledge, and thereby assumed the risk, those questions should be submitted to the jury.

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

Action by John Tobler against the Union Stockyards Company, Limited. Judgment for plaintiff, and defendant appeals. Affirmed.Greene, Breckenridge & Matters, for appellant.

Smyth & Smith, for appellee.

BARNES, J.

Action in the district court of Douglas county against the Union Stockyards Company, Limited, for damages on account of personal injuries sustained by John Tobler while working as a switchman on defendant's cars. Plaintiff recovered a judgment for $1,712, and the defendant has appealed.

It appears that at the time of the injury complained of defendant operated a railroad which connected its stockyards and the packing houses in South Omaha with the railroads centering there; that the plaintiff was employed by the defendant, and was a member of the crew engaged in switching cars from the stockyards to the packing houses; that he commenced work for defendant in September, 1906, and continued in its service until the 28th day of January, 1907, at which time he was injured; that until about a week before the accident he worked in what is known as the “North Yard,” which is located about one-half a mile from the place where his injury occurred. It further appears that he was then transferred to the vicinity of the Cudahy Packing plant, where he worked with what was known as the “Cudahy engine crew,” which was engaged in switching cars to that plant. The record shows that there were several tracks leading from the yard into the icing sheds of the Cudahy Company, one of which was called the “main icing track,” or “track No. 1,” and in close proximity thereto was another track, designated as “track No. 2.” These tracks run east and west and on the north side of and close to track No. 2, the defendant had erected and maintained a watchman's shanty. At the time of the injury the switching crew, of which defendant was one, was engaged in placing a number of cars in the icing sheds. They kicked or shunted one car onto the main or lead track towards the shed above mentioned on which the plaintiff, when it reached its proper position, set the brake. While he was performing that duty, the rest of the crew switched three cars onto track No. 2, and plaintiff descended from the car on which he had set the brake, went rapidly to the cars which were coming in on track No. 2, met them at a point about 50 feet east of the watchman's shanty, caught hold of the ladder upon the side of the first car, and began to climb to the top of that car in order to set the brake thereon when it reached the icing shed. While he was rapidly ascending the ladder, but before he succeeded in reaching the top of the car, he struck the watchman's shanty, was knocked to the ground, and received the injuries complained of. With this summary statement of facts, we now proceed to the consideration of the assignments of error.

1. Defendant contends that the court erred in permitting plaintiff to testify that he was married, over its objections, and it is argued that the fact that he was a married man would naturally excite the sympathy of the jury and cause them to render an excessive verdict, while counsel for the plaintiff insist that the inquiry was a proper one. Without deciding this question, it is sufficient to say that we find nothing in the record which in any way indicates that the bare statement that the plaintiff was married had any prejudicial effect upon the rights of the defendant. That fact does not seem to have been again referred to in any part of the evidence, and the record contains nothing in relation to plaintiff's financial ability, or the condition of his family. If the evidence was improper, which we do not decide, it was not prejudicial, and therefore affords no ground for a reversal of the judgment. Missouri P. R. Co. v. Fox, 60 Neb. 533, 83 N. W. 744.

2. It is also urged: That the judgment is excessive; that the clerk of the district court entered a judgment for the amount of the verdict, together with interest thereon, from the first day of the term, and thus violated section 6752, Cobbey's Ann. St., which provides as follows: “Interest on all decrees and judgments for the payment of money shall be from the day of the rendition thereof.” It seems that this contention is a meritorious one; but the error of the clerk affords no ground for a reversal of the judgment, because that matter could be, and doubtless will be, corrected upon motion, by the district court. Considering the amount of the verdict, the only testimony as to the extent and result of the plaintiff's injury was his own and that of a physician called in his behalf. It appears beyond question: That at the time he was injured he was working every day, Sundays included, and was earning $3.52 per day. That for four months thereafter he was unable to do any work, and was then unable to continue in the service of the company because of the weakened condition of his arm, which had been fractured by the accident. Because of this he sought and obtained employment from the Swift Packing Company, where he earned, on an average, $10 per week. That at the time of the trial his hand and arm were still in such a weakened condition that he could not perform severe manual labor, and, according to the testimony of the physician, that condition was likely to remain for at least six months or a year longer. We are therefore unable to say that the amount of the verdict was excessive.

3. Defendant further contends that the district court erred in its statement of the case to the jury as found in the instruction given by that court upon his own motion. One point in support of this contention is that the trial court in stating the issues to the jury included in his instructions the allegations of the pleadings, and then stated: “In order to recover in this case the plaintiff must show, first, that he was injured at the time and place substantially as alleged in his petition.” The argument to sustain this contention is that there was no evidence...