Walters v. Chicago Great Western Railroad Company

• Decision Date: 16 October 1915
• Docket Number: 18306
• Citation: 154 N.W. 554,98 Neb. 783
• Parties: JOHN W. WALTERS, APPELLEE, v. CHICAGO GREAT WESTERN RAILROAD COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

154 N.W. 554

98 Neb. 783

JOHN W. WALTERS, APPELLEE, v. CHICAGO GREAT WESTERN RAILROAD COMPANY ET AL., APPELLANTS

No. 18306

Supreme Court of Nebraska

October 16, 1915

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed with directions.

REVERSED.

W. D McHugh, W. H. Herdman and Smyth, Smith & Schall, for appellants.

J. W Woodrough and McLaughlin & Neely, contra.

ROSE, J. FAWCETT and HAMER, JJ., not sitting.

OPINION

ROSE, J.

Plaintiff fell on the floor of a railway freight car, while unloading wall-paper, and this is an action to recover resulting damages in the sum of $ 15,000 for personal injuries. At the time of the accident the car stood on a siding in the Omaha freight yards of the Chicago Great Western Railroad Company. It is charged that the carrier negligently delivered the consignment of wall-paper in a box car with a loose, sliding door, through which snow filtered, thus making the floor slippery and dangerous. Plaintiff was in the employ of the consignee, Yetter & Company, a corporation, and he alleges that his employer negligently ordered him, without warning, to hurry into the car, when he had no knowledge of his peril. The carrier and the employer are defendants. Both denied negligence, and alleged that plaintiff had assumed the risks of his employment. The jury rendered a verdict in favor of plaintiff and against both defendants for $ 7,500. The latter appealed. After the appeal had been docketed, plaintiff confessed that the judgment against the Chicago Great Western Railroad Company was erroneous, and in that respect it was reversed. The remaining controversy here is between plaintiff and his employer, Yetter & Company.

The decisive point on appeal is the sufficiency of the evidence to sustain the verdict. The judgment rests on the testimony of plaintiff. It may be summarized as follows: He was employed March 12, 1912, by Yetter & Company, and worked under the direction of Merwin E. Vernon, foreman. The car of wall-paper was delivered to that corporation by the Chicago Great Western Railroad Company. It stood on a side-track running east and west in the carrier's Omaha freight yards ready to be unloaded at a door on the south side. Before noon, March 13, 1912, the foreman, accompanied by plaintiff, backed a dray up to the car door; the floor of the dray being practically on the same level as that of the floor of the car. The door did not fit closely, and between it and the rolls of wall-paper, which had been loaded with the ends to the door, snow had collected. Plaintiff swept out the snow. The wall-paper had been packed in bales, each weighing 25 pounds or more, plaintiff and the foreman carrying them from the car to the dray. Together they delivered a dray load at the employer's warehouse in Omaha. They spent the afternoon at work in the same manner, and closed the car for the night. They took a dray load from the car to the warehouse before noon the next day, and closed the car door. When they returned to work in the afternoon there was no snow in the car, the floor of which was covered with a thick, heavy, glazed paper with a sleek surface. Up to that time plaintiff could walk in the car as well as on the floor of the court-room. After the wall-paper had all been moved from the car except one dray load, and while plaintiff and the foreman were absent from the closed car on a trip to the warehouse, snow fell, with the wind in the southeast. They returned for the last dray load about 5 o'clock. In their absence the wind sifted snow into the car at the lower west corner of the closed door and deposited it on the floor in a northwesterly direction. While plaintiff was adjusting a tarpaulin in the front end of the dray the foreman opened the car door. Plaintiff was told to hurry to avoid the expense of demurrage. He hastened into the car after the foreman, and what followed is stated by him in these words: "I walked to the west end of the car and got a bundle of paper, and I had it and carried it into the wagon and placed it in the front end, and as I came back and turned the corner away from the door towards the west end my feet slipped out from under me and I fell and received an injury to my hip and thigh." He further testified that it was about 5 o'clock when he slipped and fell; that the day was cloudy; that he did not see the snow in the car or know it was there until after he had fallen; that when he first stepped into the car he could see the outlines of the bundles in the west end.

The substance of the argument justifying the inference of actionable negligence on the part of the employer appears in the brief of counsel as follows: "The circumstances under which plaintiff was injured demonstrate conclusively that his falling upon the snow in the dark car was not his fault. It was the fault of the boss who ordered him to hasten into the car without in anywise calling his attention to the dangerous condition which had been created in the car during plaintiff's absence. The danger of this condition was obvious to Vernon when he was getting the door of the car open and before he gave his reckless order to the plaintiff to hurry into it. There is no shadow of doubt but that plaintiff owes his injuries entirely to this reckless and careless order given him by Vernon."

Is the position thus taken tenable? Plaintiff was an able-bodied man...