Union Pac. Ry. Co. v. Erickson

• Decision Date: 05 June 1894
• Citation: 59 N.W. 347,41 Neb. 1
• Parties: UNION PAC. RY. CO. v. ERICKSON.
• Court: Nebraska Supreme Court

41 Neb. 1

59 N.W. 347

UNION PAC. RY. CO.

v.ERICKSON.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. The plaintiff was a section man employed by the defendant. He was engaged in repairing the roadway, and stepped away from the track to permit a fast passenger train to pass. He stood about 12 feet from the track. As the train passed him, a large piece of coal fell from the tender, struck the ground, and, being shattered, a fragment rebounded, and struck the plaintiff, injuring him. The evidence showed that it required the full capacity of the tender to store enough coal to supply the engine during its run, and that the tender had been loaded to its full capacity from a chute without any precautions as to the safe disposition of the coal in the tender; that it was the fireman's duty to place in safety any coal found in a dangerous position. Held that, under these facts, it was proper to submit the case to the jury as to whether the company had been negligent in loading the coal.

2. While the facts justifying an inference of negligence must be established by the evidence, and their existence must not be left to the conjecture of a jury, and while, ordinarily, negligence cannot be presumed merely from the happening of an accident, still facts may be established by circumstances, and the same facts which prove the accident may be circumstances from which the facts justifying an inference of negligence may be found to exist.

3. In such a case evidence tending to show that it was practicable to place railings about the top of the tenders to safely increase their capacity, and that this tender was not provided with such a railing, held to be admissible.

4. Employment in the service of a common master is not alone sufficient to constitute two men fellow servants within the rule exempting the master from liability to one for injuries caused by the negligence of the other. To make the rule applicable, there must be some consociation in the same department of duty or line of employment.

Error to district court, Dodge county; Marshall, Judge.

Action by Lars Erickson against the Union Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Frick & Dolezal, for defendant in error.

IRVINE, C.

Erickson was employed by the railway company as a section hand, and was engaged in his work repairing the roadbed of the railroad near Fremont, when a fast passenger train approached, and he stepped aside to let it pass. As the train passed him, a large piece of coal fell from the tender of the locomotive, struck the ground near him, and broke into smaller pieces, one of which flew towards him, striking him, and causing a fracture of the leg. He brought this action against the railroad company alleging as negligence that the piece of coal had been negligently allowed to fall from the tender while the train was running at a high rate of speed; that the coal had been negligently loaded and negligently permitted to remain on the tender in a position rendering it liable to fall and to be cast off by the motion of the train. The railway company answered, among other things denying any negligence upon its part, and alleging contributory negligence on the part of Erickson. There was a verdict and judgment for Erickson for $1,625.

Probably, to follow the order of discussion in the brief of the railway company will disclose the features of the case as well as possible. The first point made is that the evidence did not disclose any negligence on the part of the railway company or its employes. The rule of negligence has been so frequently announced by this court that it is hardly necessary to restate it. Questions of negligence and contributory negligence are for the jury where, from the facts proved, different minds may reasonably draw different conclusions. The evidence here tends to show that Erickson, when he saw the train approaching, stepped aside until he was about 12 feet from the track, and that in so doing he pursued the course customarily resorted to by section men. There is no doubt that a large lump of coal did fall from the tender as the train passed him; that it struck the ground near the track, and, breaking into pieces, one portion thereof rebounded and struck him, causing the injury. It is quite clearly established that the lump of coal was no larger than would conveniently go into the firebox of the engine, and it may be assumed that it was proper to have a lump of such size upon the tender. The train was bound east. The run of the engine was from Grand Island to Council Bluffs, a distance of over 150 miles. Coal was loaded upon the tender at Grand Island. There was no coaling station for passengers trains between the two points. The tender of this engine would hold from 10 to 11 tons, and it required that amount of coal to supply the engine during its run. The coal was loaded from a chute at Grand Island, and, according to the fireman, the tender was loaded at this time, as usual, before the engineer and fireman mounted the engine. As he states, “I found it in all ways thrown in, just as they pulled the chute down.” It lay “in all shapes, upside down, every way dropped in there.” From this and from all the evidence it is quite clear that, in order to make the run, it was necessary to completely fill the tender; that, in order to do so, the coal was dropped in from a chute without any precautions as to its safe disposition, but the fireman testifies that it was his duty to “wet the coal down;” that for that purpose he mounted the tender before the engine started, and, if he saw any coal liable to fall from the tender, it was his duty to put it in a place of safety. According to this witness, about 6 tons of coal remained in the tender at the time of the accident. The train was a through train, and stopped at only a few stations. We think that this evidence fairly made a case to submit to the jury under the rule as above stated. The principal contention on the part of the railroad company is that negligence in loading the coal could not be inferred from the fact that the lump fell from the tender. There is no doubt of the general principle that negligence cannot be inferred merely from the fact that an accident happened, and it is also true that, while negligence is an inference to be drawn from the facts proved, facts warranting that inference must be proved, and the jury cannot be left to conjecture the existence of facts which might ground the inference of negligence. But facts may be established by circumstances as well as by direct testimony, and the same facts which prove the accident may, in some cases, be circumstances which establish the facts justifying an inference of negligence. So in this case. Neither fireman nor engineer saw the coal fall. It was certainly not dislodged from a place of safety by any act of theirs at the time. Erickson and the section boss did see it fall as the train passed. It is not merely a conjecture, it is a plain inference, from the fact that it fell under the circumstances, that it had been so placed upon the tender that it was in a position from which it was liable to be dislodged by the motion of the train. All the evidence shows that it was necessary to heap the coal upon the tender in order to enable it to carry sufficient to make the run. The fireman's evidence shows that no precautions were taken in loading to load it safely, and that he was charged with the duty to inspect the loading, and change the position of the pieces where they were unsafe. The method of loading accounts for the lumps being in a position of unstable equilibrium, and, unless we disregard the laws of physics, we must say that it had been left in such a position or it would not have fallen. In this connection we are cited to the case of Shultz v. Railway Co., 67 Wis. 616, 31 N. W. 321, a case arising out of a similar accident. Portions of that decision are open to criticism, but upon the question of negligence we do not think that the conclusion was wrong, or even that it conflicted with that we reach. All that the court there held was that the facts established did not make out a case of negligence in law. The court did not say that a jury would not be justified in finding negligence from such facts. We would say the same,--that the court should not, under such facts, instruct the jury either that there was or was not negligence. This was an inference for the jury to...