
    Mike Glarizio, appellee, v. James C. Davis, appellant.
    Filed July 13, 1923.
    No. 22458.
    1. Trial: Question for Jury. Whenever there is evidence of so positive and significant a character as, if uncontradicted, would support a verdict, it is the duty of the trial court to submit the case to the jury, under proper instructions. It is not the function of the court to weigh the evidence for the purpose of saying how the verdict should go.
    2. Master and Servant: Question for Jury. The trial court in this case committed no error prejudicial to defendant in submitting the case to the jury upon the doctrine of “the last clear chance,” as applied to the charge of negligence submitted for their consideration.
    3. Damages. The amount of verdict held, under the circumstances of this case, not so large that a remittitur should be required by this court.
    
      appeal from the district court for Douglas county: L. B. Day, Judge.
    
      Affirmed.
    
    
      J. A. C. Kennedy and Yale G. Holland, for appellant.
    
      James G. Kinsler and Herman Aye, contra.
    
    Heard before Morrissey, C. J., Letton and Dean, JJ., Blackledge and Colby, District Judges.
   Blackledge, District Judge.

This is an action to recover for personal injuries sustained by plaintiff, defendant’s employee, in the Missouri Pacific yards at Omaha, July 15, 1919. Defendant was engaged and plaintiff employed in interstate commerce, and the case is governed by the provisions of the federal employers’ liability act.

The petition states a cause of action which would authorize a recovery under the rule of the last clear chance; it being alleged that, while the plaintiff was engaged in his work in a place of danger, the defendant’s employees, who were conducting the movements of the cars in question, saw him in such situation, and in danger of being struck by the cars, but negligently failed to stop the cars or give him any warning. Defendant, in addition to denials, pleads negligence on the part of plaintiff, in that he was an experienced laborer in that occupation, could easily have observed, and in fact did see, the approach of the cars by which he was injured, and assumed the risk of such movements, the same being incident to his employment.

In addition to the argument that the trial court should have instructed a verdict for defendant, the propositions principally relied upon in this appeal involve the application of the doctrines of assumption of risk and last clear chance. The trial court, in submitting the case to the jury, told them as part of instruction No. 1:

“This, then, leaves for your consideration but one question of negligence as to which and upon which the defendant is liable, if at all, namely, the question as to whether the trainmen in charge of said string of cars saw or reasonably could have seen plaintiff in a place of apparent danger, unaware of his danger, and could have avoided the accident by the exercise of reasonable care, and by the prompt use of the instrumentalities at hand failed and neglected to do so. This is the plaintiff’s claim as outlined in the first charge of negligence upon which, and which only, the defendant can be found liable, should you find it liable.”

It also instructed, upon the question of assumed risk, to the effect that plaintiff assumed all the ordinary risks and dangers inherent in, or incident to, his employment where the business of defendant was carried on with due care, but did not assume the risk of injury arising from a danger which was the result of negligence of defendant, unless such danger was known to him or was apparent or should in the use of ordinary care have been apparent to him, or to persons of his experience and understanding. Other instructions defined negligence, ordinary care, proximate cause, and covered the matters of contributory and comparative negligence, measure of damage;, and withdrew from consideration the question of failure to sound whistle or bell as distinct grounds for a finding of negligence. It further instructed specifically that if the jury should find, as was the contention of the defendant, that plaintiff was injured while sitting in his wheelbarrow near the track, and that he knew the cars were approaching long enough in advance to have enabled him to move to a place of safety, then he had all the notice of the danger that a bell, whistle or other warning would have given him, and the giving of a warning signal was unnecessary.

The final weight to be dropped into the scale, and which, in this case, determines whether the award shall fall to the plaintiff or to the defendant, is the fact of plaintiff’s personal location and position at and immediately prior to the infliction of the injury. As to this the theories of the two parties were conflicting ■ and irreconcilable. The yard includes a number of tracks extending in a northerly and southerly direction, connected by switches and crossovers, the easternmost known as the main line, the one next to it as the old main line, and, west of that, other tracks designated by name or number.

Plaintiff’s duties were to gather up and remove pieces of paper, wood, iron, etc., which in the course of operations were dropped on and between the tracks, so as to keep the premises free from accumulations thereof. In this work he used, as his equipment, a wheelbarrow, broom and shovel. He had been in this employment in this yard five years.

Plaintiff contended that in the performance of his work he had approached from the west and was on the old main line facing southward, stooped over and in the act of edging his barrow over the east rail of this track, when, without warning, he was struck from the rear by the approaching cars. On behalf of defendant it was contended that plaintiff had previously crossed said track, . and was seated in his barrow in the space between that track and the main line immediately east of it, fading northward — the direction from which the cars came — and hence must have seen them as they approached. As to the connected acts and details of movement of cars and persons, there is much conflict and confusion of statement, both as between the two sides of the case and as between the witnesses produced by either side themselves. It all happened very quickly. The switchman Downing, who, 25 feet from plaintiff, threw the switch which turned the cars in on this old main line track, says there was possibly 30 seconds from the time he got the signal to throw the switch until he saw plaintiff coming out from under the cars. Irving, who testifies to three different switching ' movements, says it was possibly 45 seconds or a minute, or less than that, from the first to the last, the last one causing the injury. This witness further states that, in the first of these movements, plaintiff “was going to reach for something in the wheelbarrow, I judge. He was partly stooped over. I thought he was reaching for his broom or shovel.” The engineer says he saw plaintiff during the whole time, and that he was sitting in the barrow east of the track.

There was ample evidence to sustain either theory, and we need not give further consideration to tin; argument that the case should have been taken from the jury. Whenever there is evidence of so positive and significant a character as, if uncontradicted, would support a verdict, it is the duty of the court to submit the case to the jury, under proper instructions. It is not the function of the court to weigh the evidence for the purpose of seeing how the verdict should go. Mount Adams & E. P. I. R. Co. v. Lowery, 74 Fed. 463.

It is urged that plaintiff assumed the risk of injury in this manner. The court, perhaps unnecessarily, submitted that question to the jury. This is true because, as appellant also here urges, the case went to the jury upon the question of the last clear chance. Now, the thing that gives rise to the last chance rule is not an ordinary or incidental risk which may be known and assumed. In the necessary sequence of events we have passed that stage before reaching the place where the last chance doctrine is to be applied. It is a condition of impending and unanticipated danger approaching one who is unaware, and which may be averted by another, by control of the dangerous force, or the giving of proper warning. It may arise from an unusual operation or from an ordinary operation. The point is, that the one in danger is unaware of it, and the master or his agent seeing the situation, may, by reasonable and ordinary care and the use of the means at hand, avert an apparent and impending disaster to a human being.

However, defendant had the benefit of its submission, and of that cannot complain. , It complains here, not so much of the submission of the proposition, as that it was erroneously stated, in that the instruction, in effect, said the plaintiff did not assume a risk arising from defendant’s negligence, which, counsel say, is bad law. There are cases in which so broad a statement of the rule would be improper. For example, the case cited . by counsel, Preble v. Union Stock Yards Co., ante, p. 383. The negligence consisted in the nearness of the different tracks to each other, but with which situation the injured person was acquainted, and on which he had worked without objection for a considerable time. As applied to the case being tried, we think the language of the court was entirely correct. The supreme court of the United States has, we think, laid down the authoritative rule which governs this case, in Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310, wherein it is stated:

“According to our decisions; the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer, or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are SO' obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.”

Supporting the same rule are Huxoll v. Union P. R. Co., 99 Neb. 170; Fitzpatrick v. Hines, 105 Neb. 134.

Appellant further argues that, the case being sent to the jury on the question of last clear chance only, if the evidence leaves no room for the application of the doctrine of last clear chance, then the verdict and judgment are without any foundation. This is based upon a consideration of the evidence, all of which we have examined as set out in the briefs, and in full as it is contained in the record. The jury determined the facts adversely to defendant’s present contention. We believe there is hereinbefore set out a sufficient reference to the issues and evidence to indicate the propriety of the submission as made, and hold that appellant has not just cause of complaint in reference thereto. Wilson v. Union P. R. Co., 107 Neb. 111. We reach the same conclusion as to the alleged inconsistency between the statement of the issues as given in the instruction from which quotation is made herein and the one next following which required plaintiff to establish by a preponderance of the evidence “that the defendant was negligent in some particular as alleged in the petition.”

We do not consider it necessary to discuss in detail the instructions requested by defendant. We have examined all of them. Aside from those which were, in effect, instructions directing a verdict for defendant, they were mostly open to the criticism of improperly commenting upon the evidence, and the weight which should be given to it. We find that the trial court reasonably and fairly covered by its instructions given all essential issues involved under the pleadings and the evidence in the case, including those represented by defendant’s requests in so far as they were proper and material to go to the jury.

Finally, it is*insisted that the amount of the verdict, which was for $13,000, is excessive. The plaintiff at the time of the injury was an experienced laborer in that capacity, .62 years of age, of robust physique, and earning $3.20 a day. His right leg was severed between the hip and the knee, and he complained still, two years later, of suffering from the injury to his head. We concede that the award was liberal, probably more liberal than would be made by the same jury in the same case at this time. The injury was sustained in July, 1919, and the verdict returned in May, 1921, which we must recall was during the time when labor and all other things were at war-time prices, which condition probably to some extent affected the amount of the verdict. Assuming that this was so, the plaintiff had the same right as others to have his financial matters adjusted on the current basis. He has, by the delays incident to legal procedure, been prevented during two additional years from receiving the amount found to be his due, and we do not find the amount so unreasonable that he should now by this court be required to accept a reduction.

The judgment of the trial court is

Affirmed.  