Union Pacific Railway Company v. Cobb

• Decision Date: 06 June 1894
• Docket Number: 5541
• Citation: 59 N.W. 355,41 Neb. 120
• Parties: UNION PACIFIC RAILWAY COMPANY v. WILLIAM A. G. COBB
• Court: Nebraska Supreme Court

59 N.W. 355

41 Neb. 120

UNION PACIFIC RAILWAY COMPANY v. WILLIAM A. G. COBB

No. 5541

Supreme Court of Nebraska

June 6, 1894

ERROR from the district court of Dodge county. Tried below before MARSHALL, J.

AFFIRMED.

J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Frick & Dolezal, contra.

RYAN C. POST, J., not sitting.

OPINION

RYAN, C.

The defendant in error recovered a judgment in the district court of Dodge county for the sum of $ 1,425 against the plaintiff in error. The petition upon which the judgment was recovered alleged that the defendant therein named was a corporation on the 20th day of January, 1885, owning and operating a railroad line through said county, and that while plaintiff was traveling with due care on and along Main street, a public highway in the city of Fremont, in said county, crossed by defendant's said railroad line, the defendant, by its agents, servants, and employes, carelessly, negligently, and without ringing the bell on its locomotive, and without sounding the whistle thereon, and without any warning of its approach to and on said highway, ran its locomotive and cars against plaintiff, to plaintiff's great injury. Following these averments were allegations describing the extent of plaintiff's injuries and the manner and degree in which they had caused him damage. The answer admitted the corporate existence of the defendant and its ownership of the line of railroad upon which plaintiff was injured, but denied the extent of the injury to be as alleged; denied that they were imputable to defendant's negligence, or any other cause than plaintiff's own negligence. These last averments were denied in plaintiff's reply.

There were submitted to the jury special interrogatories, in answer to which the jury found that the engineer of defendant's train would, but for too high a rate of speed, have had time to lower the speed or to stop the train so as to have prevented the injury after he became aware of plaintiff's intention to cross in front; and that, after discovering the plaintiff in a place of danger, the said engineer did not at once use all appliances on his engine for arresting his train for the purpose of stopping so as to prevent a collision and injury; and that plaintiff was not guilty of negligence in failing to look for a train; and that defendant was guilty of negligence which directly contributed to the injury. The jury also specially answered that the jury did not know whether plaintiff, after he first looked for the train, could have seen it in time to avoid injury had he again looked before he attempted to cross defendant's track, and that the jury did not know whether the appliances on defendant's locomotive were such as were in general use, nor whether they were in good order. The affirmative special findings were not in each instance sustained, as they should have been, by the evidence. There were supported a sufficient number of these, however, to establish specially as facts that the defendant's employes were negligent in failing to ring the bell and sound the whistle of the locomotive, and were running the train at an unusual rate of speed just before reaching the street crossing where plaintiff received his injuries. There was also evidence to justify the special finding that the injury was not imputable to negligence on plaintiff's part. The serious nature of the injury was shown, and we do not understand that it is contended that the recovery was disproportionately large. There were, therefore, sufficient facts found, practically conceded or established by the proofs, to entitle plaintiff to the judgment rendered in his favor.

There remains to be considered another matter urged in argument as to the facts, and this refers to alleged miscontuct p123> on the part of attorneys for plaintiff in the district court. In the bill of exceptions descriptive of the commencement of the trial was contained the following language:

"Plaintiff offers, and stated in his opening to the jury, that plaintiff will prove on the trial that the witnesses of defendant, who will testify for defendant that the train that struck plaintiff was moving with proper speed and gave the signals required to be given of the approach of the train to the crossing, were employes of defendant, and that if said witnesses had reported that the striking of plaintiff was the result of any want of care on their part such witnesses would have lost their situations and been discharged by defendant, and that with such knowledge said witnesses reported said collision to have occurred from no want of care on their part.

"Counsel for defendant objects, that this is improper in the opening of plaintiff. Objection sustained. Plaintiff excepts."

Later in the trial the same matter was presented in the manner following: After asking engineer Livingston whether he made a report to the company of the accident, and receiving an answer in the affirmative, plaintiff's counsel asked, "In that report did you, or did you not, report that you had performed your duty properly?" and upon the witness answering "I did," counsel then asked him, "If you had reported that you were negligent, would you, or would you not, have been discharged?" Upon this question being overruled, counsel again questioned the witness thus:

Q. You are now in the employ of the Union Pacific Railway Company?

A. Yes.

Q. If you were to state now that this injury sued upon here occurred by the negligence of yourself or any one, would you or would you not be deprived of your position?

Objection being renewed, was sustained.

Again, upon cross-examination of Mr. Fitch, the fireman, the evidence was as follows:

Q. Did you ever make, or join in making, any report concerning this occurrence to the company when it happened?

A. I did. If I recollect I signed a report.

Q. Now Mr. Fitch, if you had reported or signed a report that this injury was caused by...