Transcript of Record — Union Pacific R. Co. v. Hadley

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1916.

No. 495.

- UNION PACIFIC RAILROAD COMPANY, PLAINTIFF IN

3 ERROR,

Vs.

ESTATE OF CHARLES M. CRADIT, DECEASED.

IN ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

INDEX.

: Original. Print

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Motion to amend petition and order granting same........ 14 10

Ee Be” ar ee ear a er 16 11

i TiN MO nts se hE eae EES RES Ce aR ERO OC ED 17 12

Instructions requested by defendant ..............0.0000. 31 22

Instruction No. 22 requested by defendant................ 36 26

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Defendant's exceptions to instructions.................6. 3T 27

Verdict and special findings of jury...............ccecee. 41 29

Special findings requested by defendant .................. 42 30

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| Jupp & Detweimter (Inc.), PRINTERS, WASHINGTON, D, C., NovEMBER 20, 1916.

Fase Ri PNR

INDEX.

Judgment

Undertaking on appeal

Certificate of clerk

Bul of exceptions

Index ..

J. J. MeConaghy

Mrs. Edith Cradit

Swan Dedrick

Charles M. Hadley

J.J. MeConaughy Creentied )

Motion to dismiss

Charles W. Long

Fred Brendel

Wallace Lynch

John Farre!!

BERR E!

—

John McClaneghan

Stipulation of fact

Motion to direct verdict

Motion to strike out, &e.

Plaintiffs Exhibit A-——Letters of administration to

Charles M. Hadley

B—Rule 50s

C—Telegram, Cameron to De Foe

& Swanson, August 29, 1913.

Application and record of ex-

amination of Charles M.

Cradit

Reporter's certificate

Memorandum as to examination of bill of exceptions,

Judge's certificate to bill of exceptions

Clerk's certificate to bill of exceptions

Precipe te docket record

Notice of appeal, &ec.

Original. Print

Se.

INDEX. ili

Original. Print

Stipulation as to briefs ...... 66. ee eee eee eee eens sev eceeerees 463 278

Errors relied upon for reversal .........eeeeee eee cocccconce 466 279

Argument of appellant ............ccceecccececseessenssves 481 288

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Petition for writ of error and allowance...........ccccesceses 521 309

CRIT EMMI 55.5: 5s wre $6 Si 0 9.9 60:48 09 8 60H ba 65'S B:8d0 524 310

Supersedeas bond on writ of Error ... 2... ccscccesccsccccocces 536 319

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UNION PACIFIC R. R. CO. VS. C. M. HADLEY, AS ADM’R, ETC. 1

1 No. 18439.

Hap.ey

Vv.

Union Paciric R. Co.

Pleas Before the Supreme Court of the State of Nebraska, at a Term

Thereof Begun and Holden at the Capitol, in the City of Lincoln,

in said State, on the 8d Day of January, 1916.

Present: Hon. Andrew M. Morrissey, Chief Justice; Hon. John

B. Barnes, Judge; Hon. Charles B. Letton, Judge; Hon. Jacob Faw-

cett, Judge; Hon. William B. Rose, Judge; Hon. Samuel H. Sedg-

wick, Judge; Hon. Francis G. Hamer, Judge.

Attest,

H. C. LINDSAY, Clerk.

2 Be it remembered: That on the 29th day of December,

1915, there was filed in the office of the clerk of the Su-

preme Court of the State of Nebraska in the case of Charles M.

Hadley, administrator of the estate of Charles M. Cradit, deceased,

plaintiff and appellee, vs. Union Pacific Railroad Company, defend-

ant and appellant, the same being an appeal from the district court

of Cheyenne County in said state, a certain transcript of the record

and proceedings in the trial of said case in said district court; that

the following are true and correct copies of the pleadings, orders,

motions, instructions and proceedings mentioned in the praecipe

filed in the office of the clerk of said supreme court by the Union

Pacifie Railroad Company on its appeal to the Supreme Court of

the United States, directing which portions of said transcript shall

be incorporated in this transcript as the same appear in the tran-

script so filed in the office of the clerk of the supreme court on said

December 29, 1915.

3 Be it remembered, that, heretofore, to-wit, on the 17 day

of July, 1915, a petition was filed in the office of the Clerk

of said Court, in the words and figures, following, to-wit:

In the District Court of Chevenne County, Nebraska.

CuarLes M. Hapwiey, as Administrator of the Estate of Charles

M. Cradit, Deceased, Plaintiff,

vs.

Union Paciric Raitroap Company, Defendant.

Petition.

The Plaintiff complains of the Defendant and for cause of action,

alleges :

1—495

—— SS etn at dahon ere iat wagered coe ae eRe het wee eRe ee ae Ce ae ee

2 UNION PACIFIC RAILROAD COMPANY VS.

That on the morning of the 14 day of March, 1913, Charles M,

Cradit departed this life, in the manner, hereinafter fully set forth,

And that this Plaintiff, Charles M. Hadley, was, by the County

Court of Cheyenne County, Nebraska, the Court of competent juris.

diction, on the 13 day of June, 1913, duly appointed Administrator

of the estate of said Charles M. Cradit; that he duly qualified; Let-

ters of Administration were issued to him and that he is now, the

duly acting and qualified Administrator of said estate.

That the Defendant, the Union Pacifie Railroad Company, is a

corporation, organized and existing, under the laws of the State of

Utah and is engaged in the business of carrying freight and _pas-

sengers, by railroad, for hire, to and from Omaha, Nebraska,

through the States of Nebraska, Colorado, Wyoming and Utah,

And that the said Defendant was so engaged, in interstate

4 commerce, as a common carrier, by railroad, on the 13 and

14 days of March, 1913.

That on the 18 day of March, 1913, the deceased, Charles M.

Cradit, was employed by and worked for the said Defendant, as a

Brakeman, in its business of interstate commerce and that at said

date, said deceased resided in the City of Sidney, Nebraska and was

employed in said business of interstate commerce, as a brakeman on

trains, running from the City of Sidney, Nebraska, to the City of

Cheyenne, in the State of Wyoming.

That on March 13 and 14, 1913, a blizzard raged, in Western

Nebraska and particularly, between Sidney, Nebraska and Cheyenne,

Wyoming; that the wind blew with such a velocity, that it was im-

possible for a man to walk and make headway, against it; that a

heavy snow was falling and blowing and drifting, to such an extent,

that it was impossible to see more than fifty feet, through said storm,

during said 13 and 14 days of March, 1913 and that by reason

of said blizzard and the conditions then prevailing, it beeame and

was dangerous and unsafe to run and operate railroad trains, in such

a manner, that one followed the other, closer than the distance

between telegraph stations, on said railroad.

That the trains on that portion of Defendant’s-railroad, situated

between Sidney, Nebraska and Cheyenne, Wyoming, was, on said

. a . Set ia 4

Beg is Liiiede SADR NSS RATES REM EEL ATI HSA NRT ESATO CANS Ne a

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC, 3

13 and 14 days of March, 1913, operated and controlled, by the train

despatcher, at Sidney, Nebraska, who was fully aware of the con-

dition of the weather and the dangers which might result, thereby,

to the operation of trains.

Plaintiff further alleges, that on the evening of March 13, +1913,

the deceased, Charles M. Cradit, was called to go out, as Brakeman,

upon a freight train, from Cheyenne, Wyoming, to Sidney, Ne-

braska; that he responded to such call and that, at about ten

5 minutes past six o'clock P. M., of March 13, he left said

City of Chevenne, Wyoming, as rear Brakeman, on a freight

train, known as Extra 504 East, loaded with interstate freight, con-

signed to various stations, outside of the State of Wyoming.

That at the time said deceased left the City of Cheyenne, it was

raining and snowing and the wind blowing with great velocity and

that said storm continued to increase, in severity, as said train pro-

ceeded, on said railroad, Kast; that so severe had said storm become,

that when said train arrived, at Dix, Nebraska, a station on said

road, said train was run in, upon a side track and the condition of

the weather and the difficulties of proceeding with safety, with said

train, farther, reported by the Conductor of said train, Ray C.

Phillips, to W. A. Borton, Train Dispatcher, at Sidney, Nebraska.

This Plaintiff further alleges, that while at the station of ix,

Nebraska, freight train, known as Extra 501 East, bound i om

Cheyenne, Wyoming, to Sidney, Nebraska, came up on the main

track, along deceased's train, Extra 504 East and that both of said

trains were present, at said station of Dix, at the same time. All

of which, was known to the Train Dispatcher, at Sidney, Nebraska,

in charge of and operating said trains.

Plaintiff further alleges, that said Train Dispatcher, W. A. Bor-

ton, regardless of his duties to the deceased and other employees of

said Defendant, Company and the passengers of said train and with

full knowledge of the conditions of the weather and the dangers

incident to operating trains, in such a blizzard, wilfully, carelessly

and negligently, ordered Train Extra 504 East, to proceed East, to

Sidney and immediately, thereafter, with full knowledge of the

conditions of the weather and the dangers incident to oper-

6 ating trains, in such a blizzard, wilfully, carelessly and negli-

gently and unlawfully, ordered Train Extra 501 East, to

proceed on, to its destination, over said railroad, to Sidney, Ne-

braska and to follow Train Extra 504 East, in close proximity.

UNION PACIFIC RAILROAD COMPANY VS.

10,

Plaintilf further alleges, that G. D. Sage, is an officer of De.

fendant, Corporation, known, as Assistant Superintendent of the

Fourth District, the same being the District between Sid.

ney, Nebraska and Cheyenne, Wyoming; that as such — off.

cer, dhe had charge of the making up and sending out. of

trains, from the terminals, of Sidney and Cheyenne; that on the

morning of March 14, 1913, he was present, in Sidney and was fully

cognizant of the blizzard, raging, at that time, between Sidney and

Chevenne and the dangers incident to the operation of trains,

caused by such blizzard and that regardless of his duties to the em-

plovees of said road operating trains and to passengers, thereon, he

wilfully, carelessly and negligently, ordered Train, known as Extra

O10 West, made up and ordered it to proceed, from Sidney, Ne-

braska, to Chevenne, Wyoming, on said railroad; that said train was

a freight train and left Sidney, Nebraska, at 1.10 A. M., on the

morning of Mareh 14, 1913; that so severe was said blizzard, that

said train consiimed one hour and fifty-five minutes, in going from

Sidney, to Mile Post 426, a distance of about eleven miles. And

that when said Train Extra 510 West, arrived at said Mile Post

426, the engine hauling said train, was out of water and was com-

pelled to abandon said train and the Dispatcher, at Sidney, Ne-

braska, was so notified, by the engineer of said engine, whose name

is unknown to the Plaintiff, herein. That on said 13 and 14 days

of Mareh, 1915, the Station, known as Mile Post 426, was the end

of the double track, from Sidney, West and situated twelve miles,

West of Sidney. That there was, at that time, a telegraph. station,

located there, and, also, there stationed, a telegraph operator, both

at day and night time and that said W. A. Borton, Dis-

7 pateher, as aforesaid, was notified of the conditions of the

engine of Extra O10 by the said Telegraph Operator, at Miie

Post 426. That when said Dispatcher was notified of the condition

of said engine, he wilfully, carelessly and negligently and without

regard to the safety of the cnployvees of said Defendant, Company or

the passengers riding on its satd train, issued an order to train Extra

O04, to stop at Mile Post 426 and take the engine, whieh fiad been

drawing Extra 510 West and whieh, was incapacitated, by reason

of the fact, that it was out of water, back to Sidney, Nebraska, not-

withstanding the faet. that he had ordered Train Extra 501 East. to

follow 504 and knew that it was following said 504 in close proximity

and knew, that by reason of the conditions of the weather and the

blizzard, raging, at said time, it was difficult for the men operating

said train, to see the signals and to give and take signals, in the

operation of the said train,

11.

Plaintiff further alleges, that the Engineer of Train Extra 504

Kast, James Zolesky, then reported to the said Train Dispatcher, the

a ee

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. o

condition of the weather, the difficulties encountered, in giving and

taking signals and asked said Train Dispatcher, to be permitted to

roceed, to Sidney, without picking up Engine 510 and attaching it

to his train. That said Train Dispatcher, W. A. Borton, with full

knowledge of the severity of the blizzard, raging and the difficulties

of giving and taking signals and with full knowledge, that Train Ex-

tra 01, was following Train Extra 504, in close proximity, wilfully,

negligently and unlawfully and with a wanton disregard for the

safety of the employees of said train and the passengers thereon, re-

fused such permission and ordered said Train Extra 504, to stop and

pick up Engine 510 and to take the same, to Sidney, Nebraska.

“All of which said Trains, to-wit, Extra 501 East, Extra 504 East

and Extra 510 West, were running without headlights, because the

severity of the storm was such, that the acetylene head lights, on said

engine, could not be kept lit.”

8 12.

Plaintiff further alleges, that the Defendant, Company, on the 13

and 14 days of March, 1915, as afofesaid, had installed, on its said

railroad, between Sidney, Nebraska and Cheyenne, Wyoming, a sys-

tem of signals, known as block signals, by which, in the night sea-

son, a red light is always displayed, in the rear of each moving train,

at various distances, therefrom, but always at suflicient distance, to

enable the engineer of one train following another, to stop, before

striking the preceding train. That the rules of said Defendant, Com-

pany, prohibit and forbid an engineer, from running by or past a

red signal light or from running by or past a signal, that does not dis-

play a green signal light, that being the signal, that the track is

clear. That on the night in question, there was a signal to the rear

of Train Extra 504, at sufficient distance to enable the engineer of

Train 501, to stop said Train, before colliding with Train 504.

13.

Plaintiff further alleges, that Train Extra 504 East, was a freight

train and then, being operated East of Potter, to Mile Post 426 and

at the point where the accident herein described, occurred, was out-

side of the yard limits. That the Defendant herein, negligently,

carelessly and wantonly, failed and neglected to take on the Condue-

tor of Train 501, at Potter and negligently, carelessly and wantonly,

proceeded with said Train, from Potter, Nebraska, to Mile Post 426

and to the point, where the accident described herein, occurred.

That it is the duty of the conductor of said train, to observe the block

signals, stationed along said railroad and that by so leaving said con-

ductor, at Potter and operating its said train, as aforesaid, without

said conductor, it deprived the said train of the care and manage-

ment of said conductor, thereby endangering the lives of the em-

ployees of said Defendant and the passengers riding on said train.

6 UNION PACIFIC RAILROAD COMPANY VS,

9 14.

Plaintiff further alleges, that on the night in question, to-wit, the

night of March 13 and 14, 19138, said Train 501, negligently op-

erated, as aforesaid, without a conductor and without a head light,

carelessly and negligently, failed and neglected to observe the signals,

immediately to the rear of Extra 504 East and carelessly and neg-

ligently, ran on and into the rear of Train 504, thereby demolishing

and destroying the caboose of said Train Extra 504, in which, de-

ceased, Cradit, was, at the time of said accident and thereby causing

his immediate death. That the death of Charles M. Cradit was

caused by the negligence of the Defendant, Company and of its em-

plovees, through the grossly, negligent manner and method of order-

ing out, dispatching and operating said trains, as aforesaid, on said

13 and 14 days of March, 1913.

15,

The Plaintiff further allegegy that the said Charles M. Cradit, at

the time of his death, was thirty-one years of age, was in sound health

of body and mind, of temperate and industrious habits, was capable

of earning and was earning, at said time, the sum of $110.00. per

month. That he left surviving him, his widow, Edith Cradit and the

following named children, to-wit :—

Violet B. Cradit, aged five vears and Grace Cradit, aged two years,

for whose benefit this action is prosecuted and no others. And that

said widow and children, were solely, dependent, upon the said

Charles M. Cradit, for their support and maintenance and that they

have sustained damages, by reason of the aforesaid wrongful acts,

neglects and defaults of the said Defendant, causing the death of the

said Charles M. Cradit, in the sum of $50,000.00 and that this suit is

brought, on behalf of and for the benefit of said Edith Cradit, Violet

B. Cradit and Grace Cradit, by the Plaintiff, herein.

Wherefore, Plaintiff herein, prays for judgment, against the De-

fendant, for the sum of $50,000.00 and costs of suit.

10 DEVOK & SWENSON,

WILCOX axp HALLIGAN,

Attorneys for Plaintiff.

STATE OF NEBRASKA,

Cheyenne County, ss:

Charles M. Hadley, being first duly sworn, deposes and says, that

he is the Administrator of the estate of Charles M. Cradit, deceased,

and the Plaintiff herein and that he has read the foregoing petition

and that the allegations therein contained, are true, as he verily be-

lieves.

CHARLES M. HADLEY.

aS if Bow te eee 8 a a DIL es NET MRM AOA HPN Oe

CHAKLES M. HADLEY, AS ADMINISTRATOR, ETC, 7

Subscribed in my presence and sworn to before me, this 17 day of

July, 1913.

[SEAL. ] 7 H. T. DORAN,

Clerk District Court.

And afterwards, on the 2 day of August, 1913, there was filed in

the office of the said Clerk, a certain Answer, in words and figures,

following, to-wit :—

In the District Court of Cheyenne County, Nebraska.

CuarLes M. Hapuey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

Vs.

Union Paciric RArtroap Company, Defendant.

Answer.

Comes now the Defendant and for answer to the petition of the

Plaintiff, filed herein, states :—

Admits, that Charles M. Cradit, departed this life, on the morning

of the 14 day of March, 1913.

11 2.

Admits, that this Defendant is a corporation, organized and exist-

ing under the laws of the State of Utah, and is now, and was on the

13th and 14th days of March, 1913, engaged in the business of carry-

ing freight and passengers, by railroad, for hire, to and from Omaha,

Nebraska, through the States of Nebraska, Colorado, Wyoming and

Utah.

Admits that on the 13th day of March, 1913, the deceased, Charles

M. Cradit, was employed by, and worked for, this Defendant as a

Brakeman.

Admits that on the evening of March 13, 1913, the deceased,

Charles M. Cradit, was called to go out, as a Brakeman, upon a

freight train from Cheyenne, Wyoming to Sidney, Nebraska; that

he responded to such call and left said City of Cheyenne, Wyoming,

at about the hour of 6:10 P. M. of said 13th day of March, 1913, as

rear brakeman of a freight train known as Extra 504 East.

ain ata 5. fs

8 UNION PACIFIC RAILROAD COMPANY VS.

Oo.

Admits that freight train known as Extra 501 East bound, from

Cheyenne, Wyoming to Sidney, Nebraska, and freight train known

as Extra 504 East were present at the station of Dix, Nebraska at the

same time, during the trip of Extra 504 East, hereinbefore referred

to.

Admits that train known as Extra 510 West, was a freight train,

and left Sidney, Nebraska, west bound, at about 1:10 A. M. on the

morning of March 14, 1913.

‘.

Admits that on said 13th and 14th days of March, 1913, the sta-

tion known as Mile Post No. 426 was the end of the double track from

Sidney West, and was situated about 12 miles west of Sidney ; admits

that, at that time, there was a telegraph station located, there, and also

a telegraph operator; admits that on the morning of March 14,

12 1913, an order was issued to train Extra 504 East to stop at

Mile Post 426 and take the engine which has been drawing

HOA West, back to Sidney, Nebraska.

Admits that on the 13th and l4th days of March, 1913, Defendant

had installed on its said railroad, between Sidney, Nebraska, and

Chevenne, Wyoming, a svstem of signals known as “Block signals,”

by which, in the night season, a red light is always displaved in the

rear of each moving train at various distances therefrom.

Admits that on the night of March 13th and 14th 1913, train Ex-

tra SOL Kast ran on and into the rear of train Extra 504 East, near

Mile Post 426, thereby demolishing the caboose of said train Extra

504, in which the deceased, Charles M. Cradit was at the time of said

accident, and that the said Charles M. Cradit died as a result of said

collision.

10.

Denies each and every allegation in said petition contained not

herein specifically admitted to be true.

11.

Further answering said petition, this Defendant alleges that the in-

juries to, and death of, the said Charles M. Cradit, were due solely

and exclusively to his own carelessness and negligence, and not to

Re ee Ae Be oD ak 7

PETE PRA RLY EE EE IO ee Pe ae a

Wikre 7 ft

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 9

any carelessness or negligence upon the part of this Defendant, and

were due solely and exclusively to dangers and risks which were open,

mm apparent and known to the said Charles M. Cradit, were incident to

n his employment and assumed by him.

12.

This Defendant alleges that the Plaintiff herein, does not have

suflicient capacity to prosecute this action herein.

Wherefore, this Defendant, having fully answered, prays that it

may be dismissed hence, and have judgment against Plaintiff for its

costs herein expended.

13 UNION PACIFIC RAILROAD COMPANY,

By MILES & McINTOSH,

EDSON RICH,

A. D. ELLICK,

Its Attorneys.

STaTeE OF NEBRASKA,

County of Douglas, ss:

A. G. Ellick, being duly sworn, on oath deposes and says that he

is one of the duly authorized Attorneys for the Defendant in the

foregoing action ;.that he has read the foregoing answer, knows the

contents thereof, and that the statements therein are true as he verily

believes.

A. G. ELLICK.

Subscribed in my presence andssworn to before me this Ist day of

Angust, 1913,

[ SEAL. | JOHN A. BENNEWITZ,

Notary Public.

Commission expires Jan. 17, 1918.

And afterwards, on the 7 day of August, 1912, there was filed in

the office of the said Clerk, a certain Reply, in words and figures,

following, to-wit:

In the District Court of Cheyenne County, Nebraska.

Cuarvtes M. Hapuiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs.

Union Paciric Rartroap Company.

Reply.

Comes now the above named Plaintiff in the above entitled action

and for reply to the Answer of the Defendant filed herein, denies

each and every aflirmative allegation therein contained.

14 CHARLES M. HADLEY,

Administrator of the Estate of Charles M. Cradit, Deceased,

By DEVORE & SWENSON,

WILCOX & HALLIGAN,

His Attorneys.

10 UNION PACIFIC RAILROAD COMPANY Ys.

And afterwards, on the 29 day of September, 1913, there was

filed in the office of the said Clerk, a certain Motion to Amend Pe.

tition, in words and figures, following, to-wit:

In the Distriet Court of Cheyenne County, Nebraska.

Cuaries M. Hapiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs.

Union Paciric Rattroap Company, Defendant.

Motion.

Comes now the Plaintiff in the above entitled case and asks leave

to amend his petition, by interlineation, in the following particular,

to-wit, that he be permitted to add to the end of Paragraph Eleven,

the following:

“All of which said trains, to-wit, Extra 501 Fast, Extra 504 East

and Extra 510 West, were running without head lights, because

the severity of the storm, was such, that the acetylene head lights

on said engine-, could not be kept lit.”

That Plaintiff be permitted to amend Paragraph Fifteen, by

adding thereto:

“And that this suit is brought on behalf of and for the benefit of

said Edith Cradit, Violet B. Cradit and Grace Cradit, by the Plaint-

iff herein.”

15 3.

And to amend Paragraph 14, by inserting in the third line, after

the words, “Without a conductor,” the words, “And without a head

light.”

And to amend Paragraph 14, by changing the word, “Train,” in

next to the last line of said-Paragraph to the word, “Trains,” so that

the same will read, “Dispatching and operating said trains.”

DEVOE & SWENSON,

WILCOX & HALLIGAN,

Attorneys for Plaintiff.

That on the 29 day of September, 1913, that being the first day of

the September, A. D. 1913, Term of Court, were had and done the

following proceedings herein, as appears upon Court Journal 6, at

Page 337.

commence

RMR Ory re peep LO TN ER TN a

CHARLES M. HADLEY, AS ADMINISTRATOR, FTC. 11

Journal Entry.

Cuartes M. Hapiey, Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs.

Union Pactric RarLroap Company, a Corporation, Defendant.

On Motion to Amend Petition.

And now on this 29 day of September, 1913, this cause ca:ae on

to be heard, upon the petition of the Plaintff, to be permitted to

amend, by interlineation, Paragraphs Eleven, Fifteen and Fourteen,

of Plaintiff's petition and the Court being fully advised in the prem-

ises, doth grant to the Plaintiff, permission to amend Paragraphs

Eleven, Fifteen and Fourteen, in his said petition, as in his

16 said motion specified.

To which ruling of the Court, Defendant excepts to so

much thereof as permits Plaintiff to amend Paragraph Eleven of

said petition.

H. M. GRIMES, Judge.

That on the 30 day of September, 1913, that being the second

day of the September, A. D. 1913, Term of Court, were had and

done the following proceedings herein, as appears upon Court

Journal 6, at Page 338.

Journal Entry.

CuarLes M. Hapwiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

Vs.

Union Pactric Rartroap Company, Defendant.

Order and Jury Impaneled.

And now, on this 30 day of September, 1913, this cause came on

to be heard, on the application of the Defendant herein, to permit its

answer, now on file, to stand, as its answer to Plaintiff’s petition, as

amended and the Court being fully advised in the premises, it is so

ordered.

Whereupon, came the parties and their Attorneys and also, twelve

men, having the qualifications of Jurors, to-wit:

C. J. Hellwig, Peter Beckman, Jacob Bruns, S. T. Watson, Emory

Planck, Andrew Nelson, i'd Root, Joseph Johnson, Frank Heinz-

man, C. O. Hade, Albert Juedes, W. W. Chowins, who were dulv

impaneled and sworn, according to law, to try this cause. And

Counsel having made th-ir opening statements to the Jury and the

hour of six o’clock P. M., having arrived, the Court having duly

cautioned the Jury, not to talk or converse with any one, with ref-

erence to said cause, nor permit others to converse, concern-

12 UNION PACEFIC RAILROAD COMPANY Ys.

17 ing said cause, in their presence, nor to converse among

themselves, concerning said cause, court was adjourned

until October 1, 1913, at 9 o'clock A. M.

H. M. GRIMES, Judge.

And afterwards, on the 4 day of October, 1913, there was filed in

the office of the said Clerk, certain Instructions to Jury, in’ words

and figures, following, to-wit:

In the Distriet Court of Cheyenne County, Nebraska,

Cuarces M. Hapney, as Administrator of the Estate of Charles VM.

Cradit, Deceased, Plaintiff.

vs.

Union Pactrie Rattroap Company, Defendant.

Instructions to Jury.

That Court instruets the Jury that in this action the Plaintiff

heings suit against the Defendant and for cause of recovery the

Plaintiff alleges in his petition that Charles M. Cradit departed this

life on Mareh 14. 1915: that on June 13, 1913. the Plaintiff was

duly appointed Administrator of the estate of said Charles M. Cradit,

and that he duly qualitied as such Administrator and is now the

duly acting and qualified Adiministrator of said estate.

That the Defendant, the Union Paeifie Railroad Company. is a

corporation organized and “42 sting under the laws of the State of

Utah and is engaged in the business of a common carrier by rail-

road through Nebraska, Colorado, had aaa and Utah, and was so

engaged on March ith and Lith, 1913.

That on said days said Charles M. Cradit: was employed

IS by and worked for Defendant as a Brakeman, residing in

Sidney, Nebraska.

That on Mareh 13th and Mth, 1913. a blizzard raged between

Sidney and Cheyenne, Wyoming.

That the wind blew with such velocity that a man could not walk

and make any headway against it, heavy snow was falling and drift-

ing so that one could not see more than fifty feet through it, and hy

reeson of such storm it was dangerous to run trains closer than the

distance from one telegraph station to another on said railroad.

That the trains on Defendant's railroad between Sidney and Chey-

enne on March 15th and 14th, 1913 were operated and controlled by

a train dispatcher at Sidney who knew the condition of the weather

and the dangers in operating trains in such weather.

That the said Brakeman, Charles M. Cradit. left Chevenne at

about 6:10 PL M.on Mareh 13th as rear Brakeman on the freight

train known as Extra 504, loaded with freight consigned to various

stations outside of Wyoming and East of Cheyenne.

That it was raining and snowing when the deceased left € ‘hevenne,

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 13

and the said storm continued to increase as the said train proceeded

East; that when said train reached Dix, a station on Defendant’s

road, said train was upon a side track, and the condition of the

weather and the difficulty of proceeding with said train in safety

was reported to W. A. Borton, the Train Dispatcher at Sidney, by

Ray C. Phillips, the Conductor of said train.

That while at said station of Dix, freight train known as Extra

501, bound Hast, came in on the main track beside the train of the

deceased, all of which was known to the Train Dispatcher at Sidney.

Plaintiff further alleges that said Dispatcher, W. A. Borton, with

full knowledge of the weather and the dangers incident to operating

trains In such a storm as was then on, wilfully, carelessly, and negli-

gently ordered train Extra 504 to proceed East to Sidney, and

19 immediately thereafter wilfully, carelessly and negligently

ordered train Extra 501 to proceed East to Sidney following

and in close proximity to said train extra 504,

Plaintiff? further alleges that G. D. Sage is an officer of Defendant

and known as Assistant Superintendent of the Defendant's road be-

tween Sidney and Cheyenne, and had charge, as such officer, of the

making up and sending out of trains from Sidney and Cheyenne.

That on the morning of March 14, 1913, said Sage was in Sidney.

knew the severity of the storm then raging, knew the dangers of

operating trains in such a storm as was then raging, vet he wilfully,

carelessly, and negligently ordered train known as extra 510 to be

made up and proceed West from Sidney to Cheyenne on Defend-

ants road; that said train was a freight and left Sidney at 1:10

A. M.on Mareh 14, 1913.

That because of the severity of the storm said train consumed one

heur and fifty-five minutes going from Sidney to Mile Post 426, a

distance of about eleven miles; that when said Extra 510 arrived at

said Mile Post 426 the engine was out of water and was compelled to

thandon the train; that the Dispateher at Sidney was so notified by

the engineer.

Plaintiff alleges that at that thme Mile Post 426 was the end of the

double track on Defendant's said road: that there was at that time

Fl telegraph station with a telegraph operator then located at said

Mile Post and said Dispatcher, W. A. Borton, was notified of the

condition of the engine drawing Extra 510 by the operator at said

Mile Post: that said Dispatcher ordered train Extra S04 to stop at

said Mile Post. to pick up said engine and bring it with his train to

Sidney, well knowing that he ordered Extra 501 East to follow

Extra 504 into Sidney, and knowing that said trains were running

in close proximity to each other and that it was difficult for the

men operating the trains to see, give and take signals, because of

the storm then raging.

20 Plaintiff alleges that Jamies Zolesky, who was Engineer of

Train Extra 504, running East, then reported to the Train

Dispatcher the condition of the weather, the difficulties in giving

and taking signals, and asked said Dispatcher to he permitted to

come on to Sidney without picking up the engine on train Extra

14 UNION PACIFIC RAILROAD COMPANY Ys,

510, and the Dispateher refused such permission and ordered said

engine to be brought to Sidney with train Extra 504,

Plaintiff further says that at said time in Mareh the Defendant

had on its road what is known as block signals, by which a red light

is always displaved in the rear of each moving train at various dis.

tances therefrom, but such distance as to enable the engineer of one

train following another to stop before striking a train in front.

That the rules of Defendant prohibited the running by a red

signal or passing a signal that did not show green.

That on the night in question there was a signal to the rear of

train Extra 504 at sufficient distance to enable the engineer of

train Extra 501 to stop before colliding with train Extra 504,

That in taking the train Extra 501 East from Potter to Mile Post

426 the Defendant carelessly and negligently proceeded without the

conduetor of the train.

That by so carelessly running, said train Extra 501, without a

conductor, without a head light, and without observing the signals,

carelessly and negligently ran into the rear of train Extra 504, de-

stroying and demolishing the caboose attached to said train, and

thereby causing the death of the said Charles M. Cradit, who was in

said caboose at the time of said collision.

Plaintiff alleges that said Charles M. Cradit at the time of his

death was thirty-one years of age. sound in body and mind, tem-

perate and industrious, and was capable of earning and was earning

$110.00 per month; that he left surviving him his wife, Edith Cradit,

and two children, Violet B. Cradit, aged five years and Grace

21 Cradit, aged two years; that said wife and children were

wholly dependent upon the said Charles M. Cradit for their

support and maintenance, and by reason of his death being caused

by Defendant's said alleged negligence and carelessness they have

sustained damages in the sum of $50,000.00, and for whose benetit

this action is brought and for which sum the Plaintiff asks judgment.

The Defendant by its answer admits the death of Charles M.

Cradit on Mareh 14, 1913; admits that Defendant was and now is a

corporation organized under the laws of Utah; was and now is en-

gaged in carrying freight and passengers by railroad for hire to and

from Omaha, Nebraska, through Nebraska, Colorado, Wyoming, and

Utah; that the deceased, Charles M. Cradit, was employed by and

working for the Defendant as a Brakeman on Mareh 13, 1912; that

on that night he was called out as a Brakeman upon a freight train

from Cheyenne to Sidney; that he responded to said call and left

Chevenne about 6:10 P. Moon March 13, 1913, as rear Brakeman of

Freight train Extra 504 East.

Defendant admits that train Extra 501 East bound from Chevenne

to Sidney, and freight train Extra 504, East bound, were at Dix at

the same time during the trip; admits that train Extra 510 was a

freight train West bound and left Sidney about 1:10 A. M.. Mareh

14, 1918; admits that on March 13th and 14th, 1913, that

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC, 15

Station Mile Post 426 was the end of the double track

fom Sidney West and was about twelve miles West from Sidney;

admits that at that time there was a telegraph station and telegraph

operator located there, and that on March 14, 1913, an order was

issued to train Extra 504 East, to stop at Mile Post 426 and take the

engine that had been drawing Extra 510 West, back to Sidney ;

admits that on March 13 and 14, 1913, the Defendant had installed

on its road a system of signals known as block signals, by which a

red light is always displayed in the rear of each moving train at

various distances therefrom in the night season; admits that on the

night of March 13th and 14th train Extra 501 East ran

9) into the rear of train Extra 504 East, near Mile Post 426,

thereby demolishing the caboose of train Extra 504, in which

the said Charles M. Cradit was at the time of said collision, and that

he died as the result of said collision.

Defendant further answering denies each allegation in Plaintiff's

petition contained except as in its answer admitted.

Defendant, further answering, alleges that the injuries to and the

death of said Charles M. Cradit were due solely to his own careless-

ness or negligence,—to the dangers and risks which were to him

open, apparent and known to be incident to his employment, and

assumed by him.

Defendant asks that this action be dismissed and that it recover

its costs.

”.

The Plaintiff, for reply to Defendant’s answer, denies each and

every allegation therein contained.

The petition and reply of the Plaintiff and the answer of the

Defendant are called the pleadings, and they are the written state-

ments made by the parties in the action of the facts constituting

there respective claims and defences.

sv Instruction No, 1 is set out in substance Plaintiff's written

claims of his right to recover herein.

In Instruction No, 2 is set out the Defendant's written claims of

defense; and Instruction No, 8 sets out Plaintiffs written claim,

reply or answer to Defendant's written defense set out in its answer.

oO.

The gist of Plaintiff's action is that the death of Charles M. Cradit

was caused by the negligence of the Defendant Railroad Company

in the operation of its trains on its tracks at or near what was called

Mile Post 426 on the night of March 13 and 14, 1913.

23 ‘acts which are alleged by one party and admitted by the

other in the pleadings do not require any proof; so that the

negligence of the Defendant, and that such negligence was the cause

of the injury to Charles M. Cradit that resulted in his death, and that

16 UNION PACIFIC RAILROAD COMPANY YS,

his death was not the result of his own negligence, are among the

decisive question- for you to pass upon in this case.

It rests upon the Plaintiff to prove by a preponderance of the

evidence the facts necessary for his recovery; that is, that the death

of Charles M. Cradit resulted from an injury inflicted upon him by

the Defendant Railroad Company in the negligent and careles

operation of its railroad in running its trains at the time and place

set out in the petition,

If the Plaintiff establishes this fact by a fair preponderance of the

evidence, then the burden will rest upon the Defendant to establish

by a fair preponderance of the evidence that the negligence and care.

lessness of the said Charles M. Cradit was the proximate cause of

the injury that resulted in his death, or that his negligence con.

tributed to his injury and death.

This action is brought under what is called the Mmployers” Lia-

bility Act, a law passed by the United States Congress, which law

provides that every common carrier by railroad, while engaged in

commerce between any of the several states, shall be liable in dam-

ages to any person suffering injury while he is employed by such

carrier, or, in case of the death of such emplovee to his personal

representative for the benefit of the surviving widow and children of

such emplovee, for such injury or death, resulting in whole or in

part from the negligence of any of the officers, agents or employees

of such carrier, or by reason of any defect or insufficieney, due to its

negligence, in its cars, engines, appliances, machinery, track, road

bed, or other equipment.

24 That in all actions brought against any sueh common ear

rier by railroad, under this aet, to recover damages for per-

sonal injuries, or where such injuries result in his death, the faet

that such emplovee may have been guilty of contributory negligence

shall not bar recovery, but the damages shall be diminished by the

jury in proportion to the amount of negligence attributable to such

Y fe

Negligence, as defined by law, is the failure to exercise such care,

forethought and prudence as under the circumstances surrounding

the case, as they appear in evidence, duty requires that reasonable

men should have exercised.

Contributory negligence, as defined by law, is a want of ordinary

care on the part of the one injured, which contributes to the hap-

pening of the injury complained of.

Reasonable and ordinary care, as applied to any case, is that degree

of care which a person of ordinary prudence would exercise under

like circumstances. It is that degree of care which a person of

ordinary prudence would exercise under the same circumstances;

and negligence is the doing of that which an ordinarily and reason-

ably prudent person would not do, or the omitting of the care or

precaution that an ordinarily prudent person would not omit.

wiatie

o oa = =— @

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 17

By a preponderance of the evidence is meant, not the greater

number of witnesses, but the greater weight of the evidence as ar-

rived at by the jury after a careful consideration of all the evidence

introduced in the case.

-You, Gentlemen of the Jury, are the sole judges of the weight of

the evidence and the credibility of the witnesses. In passing upon

the credibility of witnesses, it is vour duty to take into considera-

tion their appearance upon the witness stand, their manner of testi-

fying, their interest or lack of interest, if any, in the result of the

suit, their distinetness of recollection, means of knowledge,

25 the probability or improbabiity of the truth of their state-

ments, and the extent to which they have or have not been

corroborated by the testimony of the other witnesses or by faets or

circumstances admitted or proven upon the trial.

10,

If, under the evidence and these Instructions, vou find for the

Plaintiff, then | charge you that the measure of the damages, the

amount Plaintiff is entitled to recover, is such sum as will com-

pensate the widow and minor children of the deceased Charles M,

Cradit, in whose behalf the Plaintiff sues, for the pecuniary loss,

if any, that they may have suffered by reason of the death of said

Charles M. Cradit, less such sum, if any, vou find such damages

should be diminished by reason of contributory negligence on the

part of the said Charles M. Cradit. The law does not permit the

recovery of remote or specuiative damages, or damages as punish-

ment. In determining what the amount of the recovery should

be, you are entitled to take into consideration the occupation of

the deceased, his earning capacity at his occupation, and the reason-

able probability, as shown by the evidence, of his future earnings;

and in this connection vou are entitled to consider the Carlisle

Tables of Expectancy introduced in evidence and showing the rea-

sonable expectancy of life of a healthy person of the age of thirty-

one years to be 35 and 68/100 years.

11.

The deceased, Charles M. Cradit, left surviving him his widow,

Edith Cradit, and two children, Violet M. Cradit, aged five vears,

and Grace Cradit, aged two vears. This action is brought by Plain-

tiff, on behaif of the said widow and children.

If under the evidence in this case you find for the Plaintiff, then

you are required, under the law under which this action is brought,

to find and return by your verdict how much of the total sum you

2—495

sco maaiee acal

18 UNION PACIFIC RAILROAD COMPANY VS.

find Plaintiff shall recover shall be for the benefit of the widow,

Edith Cradit; how much shall be for the child Violet B,

26 Cradit, and how much shall be for the child Grace Cradit,

and show the same by your verdict.

If under the evidence you find that Plaintiff is not entitled to

recover, then you should return a verdict finding for Defendant.

12.

The Jury is instructed that the evidence in this case shows that

the deceased, Charles M. Cradit, was guilty of contributory negli-

gence in not guarding the rear end of his train on its arrival at the

Station Mile Post 426.

Plaintiff excepts to the giving of Paragraph One, of this Instrue-

tion.

DEVOE & SWENSON,

Attorneys for Plaintiff.

In this connection I instruct you that the Act of Congress under

which this suit is brought provides that such contributory negli-

gence does not defeat or bar a recovery on the part of the Plaintiff

altogether, but the damages shall be diminished by the Jury in

proportion to the amount of negiigence attributable to the said

Charles Mr, Cradit.

So, if vou reach that point in vour deliberations where you find

it necessary to consider the defense of contributory negligence, the

negligence of the said Charles M. Cradit does not defeat a recovery

by the Plaintiff herein, but it goes by way of diminution of damages

in proportion to his negligence as compared with the combined

negligence of himself and the Defendant Company.

13.

The Jury is further instructed that if you find from the evidence

that the Defendant was not negligent, or that the said Charles M.

Cradit received the injuries which resulted in his death without any

negligence on the part of the Defendant, or that the injuries re-

ceived that resulted in his death were the result of his own negli-

gence; that his own negligence was the proximate cause of his

death, then you will return a verdict finding for the Defendant.

27 14.

Testimony has been received in the trail of this action showing

that acetylene lights used on engines 501, 504, and 510 went out;

that when the acetylene lights went out, lighted white lanterns were

placed in the head light of the engine and used in the place of the

acetylene light; the difficulty of seeing the block signals and other

signals used; the snow in the air and the velocity of the wind.

All this evidence was received, not as evidence of any negligence

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 19

on the part of the Defendant Company, but as facts and cireum-

stances to aid the Jury to determine from this evidence, together

with all the other evidence shown during the tra/l, the severity of the

storm at the time and place of the accident or wreck.

15.

It is a question of fact for you, Gentlemen of the Jury, to deter-

mine from the evidence, whether the injury that caused the death

of Charles M. Cradit was because of the negligence of the Defend-

ant Company.

The Defendant Company acts by its agents and employees, and

is chargeable with the results of its agents and employees in the

management and operation of its trains. The presumption, in the

absence of any evidence, is that neither party was negligent or

careless; that the Defendant Company and its employees exercised

reasonable care, prudence and consideration for the employees en-

gaged in the management and running of its trains; also that the

deceased, Charles M. Cradit, used like care, prudence and considera-

tion to protect himself and avoid injury while employed by Defend-

ant in the operation of its trains. This presumption continues as to

both the deceased and the Defendant until the contrary is shown

by the evidence.

The degree of care required of the Defendant in protecting the

deceased from injury was the adoption of all reasonable means and

precautions to provide for the safety of the deceased while he

28 was engaged in his employment, and this degree of care is

to be measured by the dangers to be apprehended or avoided.

The Defendant was under obligation to not expose the deceased,

in conducting its business, to perils or hazards which the Defendant

could have guarded against by proper diligence.

The engineer on train 501, the Dispatcher and Assistant Super-

intendent at Sidney, all represented the Defendant in their respect-

ive stations, and failure upon their part, or upon the part of

either of them, in the exercise of such reasonable diligence, eau-

tion and foresight as an ordinarily prudent man would exercise

under similar circumstances to guard the deceased from injury, was

negligence of the Defendant.

In determining the question of the Defendant’s negligence, if any,

it is competent for you to consider the character and severity of

the storm at the time and place of the collision; the block signals

maintained by Defendant to give warnings of danger; the ability

of persons to see signals by lantern, fusees, and torpedoes; the

orders, if any, that were given by the Dispatcher and the Assistant

Superintendent at Sidney, or by either of them; the knowledge, if

any,, that either the Dispatcher or the Assistant Superintendent has

as to the severity of the storm; of the ability or inability of the

train men to see the block signals and other signals at the time

they gave any orders as to the running of the three trains in ques-

tion, if they or either of them gave any orders; the degree of dili-

20 UNION PACIFIC RAILROAD COMPANY VS.

gence or lack of diligence they are shown to have exercised to avoid

injury to the deceased; that care or lack of care on the part of the

engineer running train Extra 501 to see train Extra 504 and avoid

running into it.

On the part of the deceased, it is competent for you to consider

his opportunities to discover and avoid the danger to which he might

be exposed; his conduct in the matter of precaution or lack of pre-

caution in flageing the train he was on, to avoid its being run

24) into by train Extra 501, and thereby avoid danger. In short,

you will consider all the faets and circumstances shown in the

testimony bearing upon the conduct of the Defendant and the de.

ceased,

If, upon consideration of all the testimony, you find that the

injurv which caused the death of Charles M. Cradit was the proxi-

mate result of the negligence of the Defendant or its employees,

then you should find for Plaintiff as directed in Instruction No,

10,

16,

As one of its defenses the Defendant pleads what is known and

called assumption of risk. You are instrueted as a matter of law

that a servant or employee assumes the ordinary risks and dangers

incident and peculiar to the employment upon which he enters,

but he does not assume any risk or dangers due to the master’s or

employer's negligence, nor does he assume risks or dangers arising

from sudden, unfor-seen circumstances, not ordinarily incident to

his employment.

The employer relies, as he has the legal right to do, upon the

presumption that due care will be exercised by each employee to

avoid injury to himself, and by each employee to avoid injury to

his co-erplovees.

In this case, when the deceased accepted his employment. as

Brakeman for the Defendant Company he assumed all the risks and

hazards incident and peculiar to the business of brakeman in the

business of operating and running trains and handling ears by the

Defendant Company in its business of carrying on interstate com-

merce by railroad.

It is for you, Gentlemen of the Jury, to determine from all the

evidence in this case, from all the facets and circumstances shown

on the trial, whether or not the injury and death of the deceased,

Charles M. Cradit, was because of the risks and hazards incident

and peculiar to the etmployment in which he was engaged.

30 If, from all the evidence, vou find that the injury and

death of the said Charles M. Cradit was due to and the re-

sult of the risks and hazards incident and peculiar to the business

of brakeman in the operation and running ef trains, then Plaintiff

cannot recover herein; and if vou so find, you will return a verdict

finding for the Defendant.

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC, 21

17.

In coming to any conclusion in this case the Jury should be

governed by the evidence introduced before you, and by that alone.

You will disregard entirely any remarks by counsel not warranted

by the evidence. The evidence is what the witnesses were permitted

to testify while on the witness stand, and not what any counsel or

the Court may have stated their recollection of the evidence was.

You have no right to indulge in speculations, conjectures or infer-

ences that are supported by the evidence.

fach Juror may apply to the subject before him that genera)

knowledge which any man may be presumed to have; yet, if he be

personally acquainted with any material or particular fact or facts,

he is not permitted to mention the circumstance to his fellow Jurors.

If any Juror knows any particular fact or facts material to the

issues in this case, it is his duty, while sitting as a Juror, during the

trial and deliberating on this case, to keep and remain silent in

relation thereto.

So far as there is a conflict in the evidence, it is your sole duty

to reconcile it if you can; or if you cannot, to determine which is

true and which is untrue, and you are to give such weight to the

testimony of any witness as you deem it entitled to under all the

direumstances of the case.

Take this case, and from all the facts and circumstances of the

ease, shown during the trial, return such a verdict as you believe

to be just and right.

dl 18.

Upon retiring to your Jury Room, vou will first select one of your

number as foreman. You will then proceed to your deliberations.

I send out with you two verdicts, one being for the Plaintiff and

one for the Defendant. When you arrive at an agreement you will

fill the blanks in the verdict in whose favor you find. Your fore-

man will sign the verdict you agree upon. You will then notify

the officer having you in charge that you have agreed upon a ver-

diet, and he will then conduct you into open Court where your

verdict will be received.

H. M. GRIMES, Judge.

And on the said 4 day of October, 1913, there were filed in the

office of the said Clerk, certain Instructions Requested by Defend-

ant, in words and figures, following, to-wit:

SPS,

agen

22 UNION PACIFIC RAILROAD COMPANY VS.

'n the District Court of Cheyenne County, Nebraska.

Cnar.es M. Hapiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs. P

Union Paciric Rattroap Company, Defendant.

Instructions Requested by Defendant.

Instruction No. 1.

You are instructed to return a verdict for the Defendant.

Refused.

H. M. GRIMES, Judge.

Instruction No, 2.

Refused.

H. M. GRIMES, Judge.

Instruction No. 3.

case upon that action.

Refused.

H. M. GRIMES, Judge.

Instruction No. 4.

any verdict against the Defendant upon that action.

Re*used.

H. M. GRIMES, Judge.

You are instructed that the Plaintiff has failed to sustain by

sufficient proof the allegation in the petition that Train Dispatcher,

W. A. Borton, was negligent in ordering Extra 501 East to

32 follow Extra 504 East from Dix, Nebraska, to Sidney, Ne-

braska, and in close proximity to Extra 504 East, and you

are, therefore, instructed that you cannot base any verdict in this

case against the Defendant upon that allegation of negligence.

You are instructed that the action of the Defendant in permitting

Extra 501 East to leave Potter on the night of the wreck before

Extra 504 East left Mile Post 426 was not the proximate cause of

the death of Charles M. Cradit and, you are, therefore, instructed

that you must not base any verdict against the Defendant in this

You are instructed that the evidence of the Plaintiff is not suffi-

cient to show any negligence on the part of G. D. Sage, Assistant

Superintendent at Sidney, Nebraska, in ordering Extra 510 West

to proceed West from Sidney, Nebraska, at 1:10 A. M. on March

14, 1915, and you are, therefore, instructed that you must not base

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 23

Instruction No. 5.

You are instructed that the evidence shows that the action of

G. D. Sage, Assistant Superintendent at Sidney, Nebraska, in

ordering Extra 510 to proceed West from Sidney, Nebraska, at 1:10

A. M. March 14, 1913, was not the proximate cause of the death

of Charles M. Cradit, and you are, therefore, instructed that you

must not base any verdict that you might return against the De-

fendant in this case upon that action.

Refused.

H. M. GRIMES, Judge.

33 Instruction No. 6.

You are instructed that the Plaintiff failed to show that there was

any negligence on the part of the Defendant by reason of the action

of W. A. Borton, Train Dispatcher, at Sidney, Nebraska, in ordering

Extra 504 East to pick up the engine of 510 West at Mile Post 426,

and you are, therefore, instructed that you must not base any verdict

against the Defendant in this case upon that action.

Refused.

H. M. GRIMES, Judge.

Instruction No. 7.

You are instructed, that the act of the Defendant in ordering Ex-

tra 504 East to pick up the engine of Extra 510 West at Mile Post

426 was not the proximate cause of the death of Charles M. Cradit,

and you are, therefore, instructed that you must not base any verdict

in this case against the Defendant upon that action.

Refused.

H. M. GRIMES, Judge.

Instruction No. 8.

You are instructed that the Plaintiff herein has failed to show any

negligence upon the part of the Defendant in failing to take on the

Conductor of Extra 501 East at Potter, Nebraska.

Refused.

H. M. GRIMES, Judge.

Instruction No. 9.

You are instructed that the absence of the Conductor of Extra 501

East from his train after it left Potter, Nebraska, was not the prox-

imate cause of the death of Charles M. Cradit, and you are, therefore,

instructed that you must not base any verdict that you might find

against the Defendant in this case upon that fact.

Refused.

H. M. GRIMES, Judge.

24 UNION PACIFIC RAILROAD COMPANY VS.

34 Instruction No. 10.

You are instructed that the Plaintiff has failed to sustain by suffi-

cient proof the allegations in the petition that Extra 501 was running

hy signals on the night of the wreck on account of the failure of

Defendant in operating Extra SOT East without a conductor and you

are, therefore, Instructed that vou must not base any verdict that you

might return in this case against the Defendant upon that allegation,

Refused,

H. M. GRIMES, Judge.

Instruction No. 11.

You are instructed that the evidence fails to show that the Defend-

ant herein was guilty of anyenegligence toward Charles M. Cradit in

running by signals with Extra 50% Mast at the time of the wreck,

Refused.

Hl. M. GRIMES, Judge.

Instruction No, 12.

You are instructed that the action of Extra 501 East in running

by the block signals at the time of the wreck in question was not the

proximate cause of the death of Charles M. Cradit and, vou are, there-

fore, instructed that you must not base any verdict in this case against

the Defendant upon that action.

Refused.

H. M. GRIMES, Judge.

Instruction No. 13,

You are instructed that the Plaintiff herein has failed to show any

negligence on the part of the Defendant herein in operating trains

SOL East, 504 East and 510 West without head lights.

Refused.

Ht. M. GRIMES, Judge,

Instruction No. 14.

You are instructed that the Plaintiff herein has failed to show any

negligence on the part of the Defendant herein in operating train

501 East without a head light.

Refused.

H. M. GRIMES, Judge.

35 Instruction No. 15.

You are instructed that the Plaintiff herein has failed to show any

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 25

negligence on the part of the Defendant herein in operating train

504 Kast without a head light.

Refused.

H. M. GRIMES, Judge.

Instruction No. 16.

You are instructed that the Plaintiff herein has failed to show any

negligence on the part of the Defendant herein in operating train

510 West without a head light.

Refused.

H. M. GRIMES, Judge.

Instruction No. 17.

You are instructed that you must not base your verdict in this case

upon any acts of negligence that may have been committed by H. W.

Cameron, the Engineer on Extra 501 East.

Refused.

H. M. GRIMES, Judge.

Instruction No, 18.

You are instructed that the evidence in this case shows that the

death of Charles M. Cradit resulted from dangers and risks which

were assumed by him and that, therefore, the Plaintiff cannot recover

in this case.

Refused.

H. M. GRIMES, Judge.

Instruction No. 19.

You are instructed that the evidence in this case shows that the

deceased, Charles M. Cradit, at the time of his death was guilty of

negligence with contributed to the cause of his death.

Refused.

H. M. GRIMES, Judge.

Instruction No, 20.

You are instructed that the negligence of Charles M. Cradit, the

deceased, at the time of his death was the proximate cause of his

death.

Refused.

H. M. GRIMES, Judge.

36 Instruction No. 21.

You are instructed that, under the evidence in this case, the law

26 UNION PACIFIC RAILROAD COMPANY VS.

presumes that the dangers and risks incident to the operation of Ex-

tra 504 East and Extra 501 East were as open, apparent and obvious

to the said Charles M. Cradit as they were to the Defendant in this

case, and you are further instructed that, when the said Charles M.

Cradit continued in the employment of this Defendant with that

knowledge, he assumed all of the risks and dangers incident to the

operation of said trains at the time of the wreck.

Refused.

H. M. GRIMES, Judge.

In the District Court of Cheyenne County, Nebraska.

Cuaries M. Hapiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

Vs.

Unron Pactric Rattroap Company, Defendant.

Instruction No, 22 Asked by Defendant.

You are instructed that if vou find that Engineer, Cameron, had

the conversation with Conductor Phillips in the presence of Flag-

man Cradit on the engine at Dix as testified to by Witnesses Cameron

& Long, to-wit:

That,

He, Cameron, was having difficulty in seeing the signals and that

he requested Phillips in case his train stopped, to do a good job of

flagging and put out plenty of fusees,

Then you are instructed that Cradit assumed the risk of Cameron

proceeding without seeing the signals.

Refused.

H. M. GRIMES, Judge.

37 That on the 4 day of October, 1913, that being the sixth

day of the September, A. D., 1913 Term of Court, were had

and done the following proceedings herein, as appears upon Court

Journal 6, at Page 341.

Journal Entry.

Cuarves M. Haptey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs.

Unron Pactrtic Rattroap Company, Defendant.

Trial Proceeded.

And on the 4 day of October, 1913, Court convened, pursuant to

adjournment. Jury called and trial proceeded. And the taking of

testimony being concluded, counsel for the respective sides made

arguments to the Jury and on the conclusion of said arguments, the

ee — . — — eet oe

PERLE o4 AY Sob ee a OR ELE ME LT Fs OR RA LET PPE YO a AEE %

Se os Be: 5 eee : FYE

CHARLES M. HADLEY, AS ADMINISTRATOR, ETC. 97

Jury having heard the testimony, the arguments of the Counsel and

being duly instructed by the Court, retired, in charge of the Sheriff,

for deliberation.

H. M. GRIMES, Judge.

And on the said 4 day of October, 1913, there was filed in the office

of the said Clerk, certain Defendant’s Exceptions to Instructions, in

words and figures, following, to-wit :—

In the District Court of Cheyenne County, Nebraska.

Cuarces M. Hapiey, as Administrator of the Estate of Charles M.

Cradit, Deceased, Plaintiff,

vs.

Union Paciric RatLroap Company, Defendant.

Defendant's Exceptions to Instructions.

38 The Defendant excepts to Paragraph One, of the Instruc-

tions given by the Court of its own motion.

The Defendant excepts to Paragraph Two of the Instructions given

by the Court of its own motion.

The Defendant excepts to Paragraph Three of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Four of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Five of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Six of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Seven of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Eight of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Nine of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Ten of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Eleven of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Twelve of the Instructions

given by the Court of its own motion.

The Defendant exc epts to Paragraph Thirteen of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Fourteen of the Instructions

given by the Court of its own motion.

The Defendant excepts to Paragraph Fifteen of the Instructions

given by the Court of its own motion.

39 The Defendant excepts to Paragraph Sixteen of the In-

structions given by the Court of its own motion.

28 UNION PACIFIC RAILROAD COMPANY VS.

The Defendant excepts to Paragraph Seventeen of the Instrue-

tions given by the Court of its own motion.

The Defendant excepts to Paragraph Seventeen and One-Half of

the Instructions given by the Court of its own motion.

The Defendant excepts to Paragraph Eighteen of the Instrue-

tions given by the Court of its own motion,