Union Pac. Ry. Co. v. Elliott

• Decision Date: 17 March 1898
• Citation: 54 Neb. 299,74 N.W. 627
• Parties: UNION PAC. RY. CO. v. ELLIOTT.
• Court: Nebraska Supreme Court

54 Neb. 299

74 N.W. 627

UNION PAC. RY. CO.

v.ELLIOTT.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. The evidence examined, and held to sustain the findings of the jury that the negligence of the plaintiff in error was the proximate cause of the injury received by the defendant in error, and that the latter's contributory negligence was not the cause of his injury.

2. A declaration or admission, to be competent evidence as res gestæ, must be made at such time, and under such circumstances, as to raise the presumption that it is the unpremeditated and spontaneous explanation of the matter about which made.

3. An instruction of the district court examined, and held not erroneous.

4. Irrespective of a statute on the subject, the starting or running of a switch engine in a switch yard, filled with a network of tracks upon which cars are constantly moving, and in which yard men are at work, without the ringing of a bell or the blowing of a whistle, is evidence of negligence.

5. In a suit against a railway company by an employé thereof for damages for an injury sustained through the negligence of a co-employé, a defense that the two employés were fellow servants must be presented to and passed upon by the district court either by a pleading, instruction, or in some other manner, or it cannot be considered by this court.

Error to district court, Hall county; Kendall, Judge.

Action by Samuel J. Elliott against the Union Pacific Railway Company to recover for injuries received while in the employ of defendant. From a judgment for plaintiff, defendant brings error. Affirmed.W. R. Kelly, E. P. Smith, and W. H. Platt, for plaintiff in error.

W. A. Prince and J. W. Edgerton, for defendant in error.

RAGAN, C.

The track of the Union Pacific Railway Company extends due east and west through the city of Grand Island, in this state, and at that city the railway company has an extensive switch yard filled with a network of tracks. Two of these tracks extend in straight lines east and west through the yards, and the south rail of the north track is about eight feet from the north rail of the south track. The west end of this switch yard is crossed at right angles by Walnut street, and on the west side of this street is a sidewalk. In August, 1892, and for some years prior thereto, Samuel Elliott was an employé of the railway company and located at said city. His duties were to inspect the wheels, brakes, and appliances and oil the journals of cars which came to that station. In this switch yard the railway company kept one or more switch or shifting engines, which were constantly employed, both day and night, in moving cars from one portion of the yard to another. About 5 o'clock in the afternoon of August 5, 1892, Elliott heard or saw, coming from the west on the north of the two tracks just mentioned, a train, and at once started towards this train for the purpose of inspecting its wheels, brakes, etc., and oiling its journals, when it should reach the yard and stop. The train which Elliott saw on the north track came to a stop about the time its engine reached the west side of Walnut street, and at that time Elliott had reached that locality, and while standing between the two tracks, with his back towards the south one, was struck by a passing switch engine running west on said track, and injured, to recover damages for which he brought this suit in the district court of Hall county against the railway company. He had a verdict and judgment, which the railway company has filed a petition in error here to review. Of the numerous arguments urged for a reversal of this judgment we deem it necessary to notice in this opinion only the following:

1. The first contention of the railway company is that the finding of the jury that the proximate cause of Elliott's injury was its negligence is not supported by sufficient evidence. The evidence on behalf of Elliott tended to show that he took his position between the two tracks immediately west of Walnut street for the purpose of performing his duties when the train coming from the west should come to a stop; that the train stopped, and he was standing with his face towards the train waiting for the brakeman to uncouple the air hose; that he had been in that position not more than a minute when he was struck by the switch engine running west on the south track; and that no warning of the approach of this shifting engine was given by bell or whistle or otherwise. It is true that the evidence on behalf of the railway company tended to show that the bell upon the switch engine was ringing all the time it was running west. We cannot say that the jury's finding that the bell on the switch engine was not rung, and the whistle not sounded, is not supported by sufficient evidence.

2. A second contention of the railway company, and a more serious one, is that the jury's finding that Elliott's injury was not the result of his own negligence is unsupported by sufficient evidence. The evidence shows, we think without conflict, that Elliott was well acquainted with the switch yard,--with the manner in which business was transacted there; that he knew that there were two switch engines in the yard which were constantly passing and repassing over the various tracks thereof; that the two tracks mentioned were unobstructed, and a person being on either track could see trains or engines on either of the tracks for a considerable distance east and west of him; that he had been at work in this yard for a number of years; that there was ample space between these two tracks for him to oil and inspect the wheels and brakes of the train on the north track, and at the same time be safe...