
    Chicago, Burlington & Quincy Railroad Company v. George Kellogg.
    Filed September 23, 1898.
    No. 7797.
    1. Negligence: Plead in g. The essential elements of a petition charging actionable negligence are that the plaintiff, without fault on his part, has sustained an injury as the proximate consequence of a specific negligent act or omission of the defendant.
    2. -: -: Defective Appliances. An averment in a petition that the defendant negligently permitted a certain appliance to become defective, and negligently suffered it to remain in a defective condition, implies that the defendant knew or was culpably ignorant of the defect.
    3. Master and Servant: Defective Appliances: Negligence: Evidence. Where a servant sues his master on account of injuries resulting from the use of a defective tool or appliance, the fact that the accident happened cannot be taken as evidence of the master’s negligence.
    4. -: -: -: -. To entitle the plaintiff to a verdict in such case, he must affirmatively show that the defendant either knew or was inexcusably ignorant of the defective condition of the implement or appliance causing the injury.
    !>. -: -: -: Burden of Proof. In an action to recover for injuries caused by defective appliances, an instruction that it was the “duty of the defendant to exercise reasonable care in keeping such machinery and appliances in a reasonably safe condition for nse” does.not place the burden of proof on the defendant.
    6. Trial: Misconduct of Counsel: Objections: Review. A party desiring to take advantage of the misconduct of opposing counsel in the argument of a case shoiild seasonably object to the remarks complained of and then enter an exception if the court rule adversely or refuse to make a ruling.
    
      7. -: -: -: -. But where the misconduct of counsel is so flagrant, and of such a character that neither' a complete retraction nor any admonition or rebuke from tlie court can entirely destroy its sinister influence, a new trial should be awarded, regardless of the want of an objection and exception.
    8. Personal Injuries: Verdict eor Plaintiee eor $9,000: Remittitur. Evidence examined and damages held to be excessive.
    Rehearing of case reported in 54 Neb. 127.
    
      Remittitur made a condition of affirmance.
    
    
      J. W. Deweese, F. E. Bishop, W. 8. Morían, and W. P. Ball, for plaintiff in error.
    
      A. J. Shafer, 8. A. Dravo, and Stewart & Hunger, contra.
    
   Sullivan, J.

This cause is now before us on rehearing. The 'original opinion, which contains a sufficient statement of the facts, will be found in 54 Neb. 127.

' Counsel for defendant contended on the first submission, and still insist, that the petition does n'ot charge the company with actionable negligence. This contention is grounded on the fact that there is in the petition no 'averment that the defendant knew, or ought to.have known, of the defective appliance which was responsible for the accident. That knowledge, or inexcusable ignorance, on the part of the defendant, is an essential element in the plaintiffs right of action cannot be doubted. If there was neither actual nor constructive notice, the defendant was blameless, and the plaintiff has no claim on it for indemnity. But it must be remembered that in pleading'negligence it is not necessary to set out the evidential facts. An allegation tbat an injury bag resulted from a specific negligent act or omission of duty on tbe part of tbe defendant, without fault on tbe part of tbe plaintiff, is a sufficient statement of facts to support a judgment. (Omaha & R. V. R. Co. v. Wright, 49 Neb. 456; O’Connor v. Illinois C. R. Co., 83 Ia. 105; Louisville, E. & S. L. C. R. Co. v. Utz, 32 N. E. Rep. [Ind.] 881.)

Tbe averment of tbe petition tbat tbe defendant negligently permitted tbe brake-rod to become defective, and negligently suffered it to remain in a defective condition, carries a necessary implication tbat tbe company either knew, or should have known, of tbe defect. In tbe case of Crane v. Missouri P. R. Co., 87 Mo. 588, it is said tbe allegations in the petition tbat tbe injury was caused by the negligence of tbe master in failing to provide safe appliances, and stating particularly tbe defect, are equivalent to a specific allegation tbat tbe master lcneAV, or might have known, of tbe defect. It is claimed tbat the former opinion proceeds on tbe assumption tbat proof of tbe accident was prima, facie sufficient to entitle the plaintiff to a verdict, and that tbe burden of dis-proAÚng tbe alleged negligence was on the defendant. The law on the subject is clearly and accurately stated in the case of Kansas City & P. R. Co. v. Ryan, 52 Kan. 637, as follows: “It has been frequently ruled by this court, in accordance Avith tbe authorities generally, tbat an em-ployó of a railroad company, by virtue of bis employment, assumes all tbe ordinary and usual risks and hazards incident to bis employment; tbat, as between a railroad company and its employés, tbe railroad company is not an insurer of tbe perfection of any of its machinery, appliances/or instrumentalities for tbe operation of its railroad; tbat, as between a railroad company and its em-ployés, tbe railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employés reasonably safe machinery and instrumentalities for tbe operation of its railroad; tbat it aaúII be presumed, in the absence of anything to the contrary, that the railroad company performs its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has mot performed its duty; that where an employe seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employe to prove such insufficiency, but it will also devolve upon him to show, either that the railroad company had notice of the defects, imperfections, or insufficiencies complained of, or that, by the exercise of reasonable and ordinary care and diligence, it might have obtained such notice; that proof of a single defective or imperfect operation of any such-machinery or instrumentalities resulting in injury will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or alleged defect, imperfection, or insufficiency in such machinery or instrumentalities.” In the case of Lincoln Street R. Co. v. Cow, 48 Neb. 807, it was held that in an action by a servant against his master for an injury occasioned by a defective tool or appliance the jury are not authorized to infer negligence from the mere fact that the accident happened. To the same effect are Washington & G. R. Co. v. McDade, 135 U. S. 554; Chicago, St. L. & P. R. Co. v. Fry, 131 Ind. 319; Hull v. Hall, 78 Me. 114; St. Louis, I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Mixter v. Imperial Coal Co., 152 Pa. St. 395; Johnson v. Chesapeake & O. R. Co., 36 W. Va. 73; Atchison, T. & S. F. R. Co. v. Myers, 63 Fed. Rep. 798; 1 Bailey, Master & Servant sec. 101.

The instructions of the trial court were in harmony with the principles laid down in the authorities cited, and the original opinion, rightly understood, does not declare a different doctrine. The negligence pleaded, and the negligence upon which plaintiff’s right to a verdict was, under the instructions, made to depend, consisted in the failure of the company to keep the brake-rod in a safe condition for use. The jury were told that it was the “duty of the defendant to exercise reasonable care in keeping such machinery and appliances in a reasonably safe condition for use.” The burden of proof was not placed on the defendant. The plaintiff proved the accident, and also introduced affirmative evidence from which the jury might well infer that the defect in question had existed for a considerable length of time. That the company’s inspectors did not discover the defect is not conclusive against its existence. The worn edges of the hole in the brake-staff and the flattened condition of the wire were persuasive facts supporting plaintiff’s theory. They tended to prove that the defect had existed so long that the failure to discover and properly repair it must have been the result of careless inspection.

Defendant has presented quite an elaborate argument in support of its demand for a reversal of the judgment on account of the misconduct of Mr. Shafer, one of the attorneys for the plaintiff. We have again examined the question and reach the conclusion that it is the duty of a party who complains of the misconduct of his adversary’s counsel to make seasonable objection and then secure a ruling of the court upon such objection; and if the ruling is against him, or if the court refuse to rule, he should enter an exception. In 2 Ency. Pl. & Pr. 755 the rule is stated as follows: “In order that a party may avail himself in an appellate court of ah objection for misconduct of opposing counsel in the argument of a case, he must not only interpose a seasonable objection, as has just been stated, but he must then press the court to a distinct ruling, and, if dissatisfied therewith, enter an exception; otherwise there is nothing presented for review.” In this case there was no formal objection, and consequently no ruling, or contumacious refusal to rule, which we are authorized to review. Had the court, in response to a proper objection, vigorously condemned the remarks of counsel, we think they would have left no prejudicial impression on the minds of the jury. By prompt action the defendant’s counsel might have obtained an effective antidote for the poison in Shafer’s speech; but he failed to act, and is, therefore, not in an attitude to have his complaint now-considered. We do not, however, wish to'be understood as holding that a rebuke from the court, or even a complete retraction by the offending counsel, is in all cases of this kind a sovereign remedy. If the transgression be flagrant — if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence — a new trial should be promptly awarded, regardless of the want of an objection and exception. (Florence Cotton & Iron Co. v. Field, 16 So. Rep. [Ala.] 538; Bullard v. Boston & M. R. Co., 64 N. H. 27, 10 Am. St. Rep. 367, 27 Am. & Eng. R. Cases 119; Cleveland Paper Co. v. Banks, 15 Neb. 20; Ashland Live Stock Co. v. May, 51 Neb. 474, 71 N. W. Rep. 67; Tucker v. Henniker, 41 N. H. 317; Martin v. State, 63 Miss. 505; Rudolph v. Landwerlen, 92 Ind. 34.)

In view of the condition of the record Ave are not warranted in reversing the judgment on account of misconduct of counsel; but we have concluded, after a thorough consideration of the evidence, that the damages are excessive, and must have been assessed while the jury were yet under the sway of counsel’s superheated eloquence. The judgment will be reversed unless plaintiff shall within thirty days file with the clerk of this court a re-mittitur for the sum of $2,500. If such remittitur be so filed the judgment for $6,500 will stand affirmed.

Judgment accordingly.  