Zitnik v. Union Pacific Railroad Co.

• Decision Date: 30 January 1914
• Docket Number: 17,958
• Citation: 145 N.W. 344,95 Neb. 152
• Parties: BARBORA ZITNIK, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

145 N.W. 344

95 Neb. 152

BARBORA ZITNIK, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT

No. 17,958

Supreme Court of Nebraska

January 30, 1914

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Edson Rich and John A. Sheean, for appellant.

Smyth Smith & Schall, contra.

LETTON J. BARNES, J., dissenting, HAMER, J., joins in this dissent.

OPINION

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 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 (35 U.S. St. at Large, pt. 1, ch. 149, p. 65). The amended petition further set out specifically various acts of commission or commission 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.

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 negligently and carelessly, and without any regard for the safety of the 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 the said John Zitnik injuries from which he died within a few hours thereafter." The amended petition merely amplified and set out more specifically the various acts of commission and commission of the defendant which it is claimed were included in the general allegations of negligence in the original petition. We think this is permissible, and that the amplification of the charge did not constitute the bringing of a new action for a different cause. Smith v. Missouri P. R. Co., 56 F. 458; Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276.

Johnson v. American Smelting & Refining Co., 80 Neb. 255, 116 N.W. 517, which seems to be relied upon by the defendant, is clearly distinguishable from the case at bar. In that case the original petition charged that the injury complained of was caused by the negligence of the company to whose rights the defendant succeeded, and the amended petition alleged that the injury was caused by the negligence of the defendant. It follows that the court did not err in refusing to strike the amended petition from the files.

Defendant contends that the court erred in sustaining the motion of the plaintiff to set aside the order dismissing the defendant Mullen. It appears that at the close of the plaintiff's testimony a motion was made by each of the defendants for a directed verdict. After argument the motions were taken under advisement over night by the court. The next morning, before the court ruled upon the motions, counsel for the plaintiff in open court dismissed the case as to defendant Mullen. Defendant's attorney then asked a continuance for a few hours to enable it to present a petition and bond for removal to the circuit court of the United States. Plaintiff's attorney, having discovered that he had made a mistake as to the date of the federal employers' liability act in asking for such dismissal, moved to set the order aside. The court sustained the motion, and reinstated the case as to Mullen, over the objections of defendant. Thereupon, Mullen appeared and renewed his motion for a directed verdict, and the motion was sustained.

A controversy arose as to when a petition and bond for removal were presented, but we are content to abide by the finding of the district court made at the time on this point. The district court had the power to vacate or modify its own orders or judgments at any time during the term at which they were pronounced. Bradley v. Slater, 58 Neb. 554, 78 N.W. 1069. It follows that the defendant cannot predicate error on this ruling.

It is also contended that the trial court erred in not directing a verdict for the defendant company, and in refusing to strike from the record so much of plaintiff's evidence as supports the new allegations in the amended petition. Since we have held the amendments proper, it could not be error to allow evidence in support of them. Much stress is laid upon the contention that the evidence as to the existence of a custom in the yards to keep a man stationed as a lookout on the front footboard of a switch engine moving forward is insufficient to warrant its submission to the jury. Two witnesses, both of whom had been employed by the defendant and one of whom said, "I live right in the yards you may say," testified to the existence of such a custom. Their testimony was much weakened on cross-examination, and there was testimony to the contrary by a number of the defendant's employees. The weight and credibility of the testimony was for the jury, and, while the writer does not consider it of much probative value, a juryman seeing and hearing all the witnesses might be of a contrary opinion. We think the witnesses were competent to testify, and that no error was committed in its admission. Furthermore, under the other allegations in the amended petition this question is of little moment. If we omit entirely the negligence predicated upon the failure to observe the alleged custom, it seems to us that a verdict for plaintiff is sustained upon the evidence tending to prove...