DocketNumber: No. 17,260
Citation Numbers: 94 Neb. 456
Judges: Barnes, Fawcett, Hamer, Rose
Filed Date: 10/17/1913
Status: Precedential
Modified Date: 7/20/2022
While George E. Bradford was in the employ of defendant at the intersection of Twenty-second and Nicholas streets in Omaha, he was fatally crushed between an electric motor car and a freight car on defendant’s street railway. To recover resulting damages in the sum of $7,500, this action was brought by the executrix of his will. In the' petition it is alleged that Bradford, immediately prior to the accident, had, as an employee of defendant, been cutting grass and weeds; that he was called therefrom by defendant, and under its direction was handling a trolley rope of the electric motor car; that while so engaged he was ordered by defendant’s foreman to place a timber between the cars for switching purposes, and to get between them and hold it in place while the switching was being done; that the timber was one of the cast-off and discarded cross-arms upon which electric, telephone and telegraph wires are usually supported, and was unsound and insufficient in strength, and an improper and unsafe tool for the work thus ordered to be done; that when complying with the foreman’s directions the timber broke; that the cars collided; and that Bradford-was injured in the manner stated. The specific acts of negligence are charged in these words: “The said death of Bradford was caused by the negligence and carelessness of said defendant in providing him, the plaintiff, with unsafe, unsound, weak and an improper timber to be used as aforesaid, and ordering and directing him to use the same as aforesaid.” The answer Avas a general denial. For the reason the trial court was of opinion that plaintiff “failed by her proof to show any negligence on the part of the defendant which entitled her to a verdict,” there Avas a peremptory instruction against her. From a dismissal of her action, she has appealed.
For proof of the facts constituting the alleged negligence, plaintiff relies on two witnesses. One was the plaintiff herself, who said she witnessed the accident from her porch. In several particulars her testimony is contradictory. The other witness was an employee of defendant, by the name of Sam Musca, who required the assistance of an interpreter. His testimony is somewhat confusing and not entirely consistent. Defendant, with a motor car, was engaged in switching a freight car on its track around a curve. On account of the curve, ordinary couplings could not be used, and a number of wooden cross-arms had been provided for switching purposes. Bradford was watching the trolley rope, or attending to other duties incident to switching. He picked up one of the cross-arms, placed it lengthwise between the motor and the freight car and stepped away. For some reason, it was not kept in place by impact, and it fell. Bradford went back between the cars, picked it up, and reset it. When the motor closed on it, he attempted to hold it in place, but it slipped at one end, and he was crushed between the cars. Plaintiff testified that the cross-arm was
Was a negligent order of the foreman the proximate cause of the injury? Plaintiff testified in substance that she heard the foreman ordering Bradford to get a cross-arm, to go between the cars, and to put it in place. On the contrary, plaintiff’s witness Musca stated positively that the order was given to him, and not to Bradford; that Bradford voluntarily got the cross-arm and attempted to use it; that after he had adjusted it the second time he was peremptorily ordered by both the foreman and the motorman “to get out of there,” but that, instead of obeying, he attempted to hold the timber in place. The evidence that these orders “to get out of there” were given to Bradford is uncontradicted. If plaintiff is correct in her propositions of law therefore, evidence of defendant’s actionable negligence seems to be wanting. The conclusion is that error does not affirmatively appear in the peremptory instruction in favor of defendant.
Affirmed.