Zitnik v. Union Pacific Railroad Company

• Decision Date: 12 June 1912
• Docket Number: 17,015
• Citation: 136 N.W. 995,91 Neb. 679
• Parties: BARBORA ZITNIK, ADMINISTRATRIX, APPELLEE AND CROSS APPELLANT, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT; JOHN J. MULLEN, CROSS-APPELLEE
• Court: Nebraska Supreme Court

136 N.W. 995

91 Neb. 679

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

JOHN J. MULLEN, CROSS-APPELLEE

No. 17,015

Supreme Court of Nebraska

June 12, 1912

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.

REVERSED.

John A Sheean, for appellant and cross-appellee.

Smyth Smith & Schall, contra.

SEDGWICK, J. REESE, C. J., FAWCETT, J., dissenting.

OPINION

SEDGWICK, J.

Plaintiff, as administratix 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 employee 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 duties 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 10591 to 10593, inclusive, Ann. St. 1911, commonly known as the "Employers" 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 grounds, 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 two and one-half or three 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 were found, there was a small pile of snow which had the appearance of having been removed the morning on which the accident happened. No person was on the running-board in front of the engine. Zitnik was killed at about 11 o'clock A. M. As to the allegations of the answer, that the accident was the result of contributory negligence on the part of Zitnik, there is no direct evidence whatever. There was no allegation of negligence of the defendants, except the allegation above quoted, that the defendants negligently caused an engine "to move against, upon and over the said John Zitnik."

The engineer, who controlled the movements of the engine, was the defendant Mullen. If it was his negligence that caused the accident he was liable, and the verdict must have been against him also. The jury found that there was no negligence on his part by finding a general verdict in his favor. The only other employees or agents of the defendant company that were in any way connected with the running of the engine were the fireman Walsh and the two men stationed upon the foot-board of the engine. It is not suggested by any one that the...