Zitnik v. Union Pac. R. Co., No. 17,958.

• Court: Supreme Court of Nebraska
• Writing for the Court: LETTON
• Citation: 145 N.W. 344,95 Neb. 152
• Docket Number: No. 17,958.
• Decision Date: 30 January 1914
• Parties: ZITNIK v. UNION PAC. R. CO.

95 Neb. 152
145 N.W. 344

ZITNIK
v.
UNION PAC. R. CO.

No. 17,958.

Supreme Court of Nebraska.

Jan. 30, 1914.

Syllabus by the Court.

In an action for the negligent killing of plaintiff's decedent, plaintiff may amend her petition by alleging other and additional grounds of negligence. Such amendment does not amount to a departure, and does not render the petition vulnerable to a plea of the statute of limitations, and evidence in support of the new allegations is properly receivable. Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N. W. 276.

The district court has the power to set aside its orders and judgments at the same term at which they are made or rendered, and error cannot be predicated on a ruling setting aside an order dismissing the case as to one of the defendants, and reinstating it as to such defendant. Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069.

Where plaintiff alleges that it was the custom of the defendant to station a man on the footboard in front of its moving engines to warn trackmen of their approach, and that defendant was guilty of negligence in not following such custom, which negligence caused the death of plaintiff's decedent, the burden of proof is on the plaintiff to establish the existence of such a custom by a preponderance of the evidence, and the question whether such custom actually existed is one for the jury to determine.

Where the facts in evidence showed that the deceased was a track laborer working under the direction of a foreman, that he was ordered by the foreman to clear the switches and switch points of snow and ice which might interfere with their use, that at that time the weather was inclement, a strong northwest wind was blowing, some snow was drifting, and the temperature was below zero, that, when placed at work, the deceased wore a cap with a flap to it, which was pulled down over his ears, and a knitted muffler, that the work was such as to require his close attention, and to necessitate a stooping posture, held, that his position by reason of the circumstances was one of increased and peculiar danger, and the question whether defendant was guilty of negligence in failing to use reasonable care to warn the deceased of the approach of moving engines or cars was properly submitted to the jury.

Additional Syllabus by Editorial Staff.

A recovery of $9,500 for the negligent killing of a man 51 years of age, earning and devoting to his family from $450 to $480 per year, is excessive, and should be reduced to $7,000.

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

Action by Barbora Zitnik, administratrix of John Zitnik, deceased, against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 91 Neb. 679, 136 N. W. 995.

Barnes and Hamer, JJ., dissenting.

[145 N.W. 344]

Edson Rich, of Omaha, and John A. Sheean, of Chicago, Ill., for appellant.

Smyth, Smith & Schall, of Omaha, for appellee.

LETTON, J.

This case is before us on a second appeal. It was first tried on the theory that Engineer Mullen, who was in charge of the engine which ran over and killed plaintiff's decedent, was guilty of negligence in not seeing Zitnik upon defendant's track in time to have stopped his engine before the accident occurred. The jury, on the first trial, disagreed. The second trial was had upon the same issues, and resulted in a verdict for the defendant Mullen, acquitting him of the negligence charged; but

[145 N.W. 345]

plaintiff had a verdict against the defendant railroad company, and judgment was rendered on the verdict. From that judgment, the defendant company brought the case to this court, where the judgment was reversed, and it was held that the verdict against the railroad company was inconsistent with the one finding that the engineer was not guilty of negligence, and therefore could not be sustained. The question as to whether or not the evidence would support a verdict against Mullen was unnecessary to determine, and was not involved. As to the fireman, Walsh, however, the opinion seems to determine that on the evidence then presented no negligence was shown as to him. Zitnik v. Union P. R. Co., 91 Neb. 679, 136 N. W. 995. The cause was remanded for further proceedings, and before the third trial in the district court plaintiff filed an amended petition, in which she alleged that plaintiff's decedent at the time of his injury was within the protection of the federal employers' liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). The amended petition further set out specifically various acts of commission or omission on the part of the defendant as constituting negligence. It charged that Zitnik was accustomed to work with a number of track laborers “under the direction of a foreman who, while they were at work upon the tracks, was accustomed to keep a lookout for approaching engines, cars, and trains, and to give timely warning to them of danger from that source” ; that Zitnik “relied upon said company providing for him some person who would keep a lookout for the advance of engines” ; that defendant negligently and carelessly failed to do so, although it knew that the nature of his work prevented him from keeping an effective lookout; that there was nothing to prevent the engineer and the crew of the engine from seeing Zitnik from the time the engine started until it struck him, but that they negligently and carelessly failed to see him, and thus caused the accident; that it was the custom of defendant to keep a man stationed upon the front footboard of the engine on the lookout when the engine was moving forward; that Zitnik relied upon this custom, but that on the morning of the accident the defendant negligently failed to provide a lookout; that on the morning of the accident, when Zitnik was directed by the foreman to clean out the switch points, it was extremely cold, and a strong northwest wind was blowing; that it was necessary to protect his ears and head from the severity of the weather with a cap and muffler, which interfered with his hearing, as the foreman well knew, and that while engaged in the work he relied upon the defendant to provide him with some one to warn him of the approach of engines, as was the custom when working with associates, but that defendant negligently failed to provide such a person to give the warning; that the nature of the work prevented Zitnik from keeping an effective lookout, as the defendant well knew.

[1] Defendant filed a motion to strike the amended petition from the files, because it stated another and different cause of action from that contained in the original petition, which new cause of action was barred by the statute of limitations. The motion was overruled, and this ruling defendant assigns as error.

As we view the record, the amendment in question did not state a new or different cause of action from that stated in the original petition. The original petition merely contained the general allegations that, while Zitnik was engaged in the work described, “the defendants...