Zitnik v. Union Pac. R. Co.

Citation91 Neb. 679,136 N.W. 995
Decision Date12 June 1912
Docket NumberNo. 17,015.,17,015.
PartiesZITNIK v. UNION PAC. R. CO. ET AL.
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

If a corporation and its employé or agent are sued jointly for damages, alleged to be caused by negligence of the defendants, and there is a general verdict in favor of the employé and against the corporation defendant, the verdict cannot be sustained, without evidence that employés or agents of the corporation, other than the one so exonerated, were guilty of negligence which was the proximate cause of the injury.

If the petition, in an action for damages, charges the defendant with certain acts of negligence, the proof must agree with the allegations; and the jury is not at liberty to infer that the defendants were negligent in other matters, not alleged.

The rule of “the last clear chance” implies that the one charged with negligence knew the person injured was in a place of danger and negligently failed to avoid injuring him; but his testimony that he did not have such knowledge is not conclusive. Such knowledge may be shown by proof that the person injured was in a situation of imminent danger, and so situated that the one injuring him, if he used his senses as human beings ordinarily do, must have known the danger.

The fact that the person injured was in a situation of danger, and so situated that he could have been observed by the defendant, must be proved by a preponderance of the evidence. The jury is not at liberty to estimate the probabilities in that regard, without substantial proof.

A verdict inconsistent with itself must be set aside upon application of all parties prejudiced thereby.

The jury having found that the engineer in charge of the engine which killed the deceased was not negligent, and there being no evidence of negligence on the part of any other agent or employé of the defendant company, the plaintiff and the defendant company having both appealed, the judgment of the district court is reversed, and the cause remanded.

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

Action by Barbora Zitnik, as administratrix of the estate of John Zitnik, against the Union Pacific Railroad Company and another. From a judgment for the plaintiff against the defendant railroad company, it appeals; and from a judgment for defendant John J. Mullen, plaintiff appeals. Reversed and remanded.

Reese, C. J., and Fawcett, J., dissenting.

John A. Sheean, for appellant.

Smyth, Smith & Schall, for appellee.

SEDGWICK, J.

Plaintiff, as administratrix of the estate of her deceased husband, John Zitnik, commenced her suit in the district court for Douglas county against the defendants Union Pacific Railroad Company and John J. Mullen to recover damages for the death of said John Zitnik, alleged to have been caused by the negligence of defendants. It is alleged that defendant Mullen was a locomotive engineer, and in charge of a locomotive switch engine in use in the track yards of the company, and the decedent was an employé of said company, his duties, at the time of the alleged accident, being to keep the switches and tracks of the company in said yards clear of obstructions, and in which duty he was thus engaged; that on the 30th day of January, 1909, while Zitnik was engaged in said duties, and about the hour of 11 o'clock a. m., the defendants negligently caused a locomotive switch engine, belonging to defendant company, to move against, upon, and over said Zitnik, thereby negligently inflicting injuries upon him from which he soon thereafter died.

The defendants filed separate answers to the petition; that of the company being, first, a general denial of all unadmitted allegations; second, an admission that Zitnik was killed at the time and place alleged, but denies that defendants, or either of them, negligently and carelessly, or without regard for the safety of said John Zitnik, caused a locomotive switch engine, belonging to the defendant railroad company, to move against, upon, and over the said John Zitnik thereby negligently and carelessly inflicting upon him the injuries which caused his death, but does not deny that the body of said John Zitnik was run over by a locomotive switch engine of defendant railroad company, of which defendant John J. Mullen was engineer.” It is alleged that the decedent was guilty of contributory negligence.

The defendant Mullen filed his separate answer, which was, in substance the same as the answer of the railroad company. Plaintiff replied, denying the contributory negligence of the decedent. Later defendant company amended its answer, in which it is alleged, in substance, that the action was brought under the provisions of sections 10,591-10,593, Ann. St. 1911, commonly known as the Employer's Liability Law, and questioning the constitutionality of said sections. By these pleadings all question of the death of Zitnik by being run over by the switch engine of defendant railroad company is eliminated, and it is admitted that he was “run over by a switch engine” on the date named, and that he died on the same day; the only issue referring to his death being as to the negligence of defendants and the contributory negligence of the decedent.

A jury was had, and at the close of the evidence the defendant Mullen moved the court for a peremptory instruction to the jury to return a verdict in his favor. The motion was overruled. Thereupon the defendant company presented a similar motion, which was overruled. The two defendants then joined in a similar motion on the same ground, which was also overruled. To these rulings exceptions were separately taken. The jury returned a verdict in favor of defendant Mullen, and against the railroad company in favor of plaintiff, for the sum of $9,600. A motion for a new trial was filed by defendant company. Plaintiff also moved for a new trial as against defendant Mullen. Both motions were overruled, when defendant company moved the court for a judgment in its favor notwithstanding the verdict. This motion was also overruled, and judgments were entered in accordance with the findings of the jury.

It appears from the evidence that Zitnik was one of the trackmen laboring on the tracks and switches in the yards of defendant. The 30th day of January, 1909, the day of the accident, was a cold day, the temperature being one degree below zero, and the wind blowing from the northwest at the rate of 22 miles an hour. During the forenoon the foreman directed Zitnik to go and examine the tracks and switches and report their condition. He went as directed and soon thereafter returned, and reported that there was some accumulation of snow in the switches. He was then directed to clean the switches of the accumulated snow. (There was little snow on the ground, but sufficient to be blown and packed in and about the switches.) He left the foreman for the purpose of discharging the duties imposed, and was seen later upon the tracks in the vicinity of the place where he was killed, but probably an hour or so before the accident. The first account we have of the engine on that day was just before the accident, when it was standing on one of the tracks, near the Tenth street viaduct, headed west, and in charge of the engineer, fireman, and two persons on the running board at the rear of the tender. The engine was started to the westward on one of the many tracks, and when it arrived at the Eleventh street viaduct, one block away, it ran over and injured Zitnik to such an extent that he almost immediately died. So far as is shown by the evidence, no person saw him immediately before the accident, nor at the time it occurred, and the first that was known of it was when the rear of the tender, with the foot or running board, on which the two men were standing, passed over Zitnik's body, when they jumped off the running board, called the attention of the fireman, giving the signal to stop, the fireman in turn notifying the engineer, when the engine was stopped, and the body, almost lifeless, was removed from the track. Life became extinct on the way to the hospital. The engine was running at the rate of 2 1/2 or 3 miles an hour as it approached the Eleventh street viaduct, where Zitnik was killed. The northwest wind, against which the engine was running, caused the smoke from the engine to settle on the left or south side of said engine, and at times, at least, cut off the view of the fireman. The track was level and on a slight curve to the northward, with no cuts or fills. Just prior to the start, the fireman shoveled fresh coal into the fire box, this making what is called a “green fire,” which emitted an increased volume of smoke. The engine bell was kept ringing. As the engine bore a little to the northward following the curve in the track, the front end shut off the view of the engineer and brought the line within sight of the fireman, except as interrupted by the smoke. Upon an examination made at the place of the accident about two hours later, Zitnik's shovel and broom were found by the track, near the place where the engine probably struck him. Near where the accident occurred, and not far from where the shovel and broom...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT