Davis v. Union Pacific Railroad

Rose, J. This is an action to recover damages in the sum of $2,610 for personal injuries sustained by plaintiff while a passenger on a train running on defendant’s railroad track from North Loup to Ord. Plaintiff pleaded that the car in which he was riding was blown from the track by a storm and overturned about three miles from North Loup. He alleged further: “That a stove placed in said car by the defendant was so carelessly and negligently secured and fastened to the floor of said car and the fastenings of said stove were so carelessly and negligently maintained by the defendant that when said car was overturned said stove broke said fastenings and was hurled against and upon the plaintiff, [770] and the plaintiff was thereby greatly injured; that the overturning of said car by said storm would not have caused said stove to break loose from the floor of said car if said stove had been properly secured and ¿lie fastenings thereof properly maintained; that the plaintiff was uninjured by the overturning of said car, and, had it not been for the negligence and carelessness of the defendant and its servants in securing said stove in said car and in permitting the fastenings of said stove to become out of order, the plaintiff would have escaped injury.” Defendant denied negligence, and pleaded that the storm which overturned the car was the act of God and the sole cause of plaintiff’s injuries. The reply to the answer admitted that the storm was an act of God resulting in the overturning of the car, but pleaded : “The plaintiff alleges that his injury and damages were not caused by, or the natural result of, the overturning of said car, but were wholly.the result and consequence of the negligence of the defendant in failing to secure and properly maintain the fastenings of the stove placed in said ear by the said defendant.” The jury rendered a verdict in favor of plaintiff for $170.81. Defendant moved for a judgment in its favor on the pleadings notwithstanding the verdict. Rev. St. 1913, sec. 8008. The motion was overruled. From a judgment on the verdict, defendant has appealed. There is no bill of exceptions preserving the evidence, and the only question presented by the appeal is: Should the trial court have sustained the motion of defendant for judgment in its favor notwithstanding the verdict? The answer depends on the pleadings. For the purposes of this question the allegations of the petition and the reply must be regarded as established. Plaintiff alleged that his injuries were not caused by the overturning of the car. He pleaded that they resulted from negligence of defendant in failing to properly fasten the stove. The rule is that an act of God is no defense if defendant’s neg [771] ligence was a concurrent cause of the injury. Amend v. Lincoln & N. W. R. Co., 91 Neb. 1. In 1 Shearman and Redfield, Negligence (6th ed.) sec. 39, it is said: “It is universally agreed that, if the damage is caused by. the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the ‘act of God’ or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. * * * But if the superior force would have produced the same damage, whether the defendant had been negligent or not,- his negligence is not deemed the cause of the injury.” It follows that the motion for judgment in favor of defendant notwithstanding the verdict was properly overruled. Affirmed.