Chicago, Burlington & Quincy Railroad Company v. Spirk
| Citation | 70 N.W. 926,51 Neb. 167 |
| Decision Date | 21 April 1897 |
| Docket Number | 7069 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. EMAN J. SPIRK ET AL |
| Court | Supreme Court of Nebraska |
ERROR from the district court of Saline county. Tried below before HASTINGS, J. Reversed.
REVERSED AND REMANDED.
J. W Deweese and F. I. Foss, for plaintiff in error:
The petition nowhere alleges that the plaintiffs took passage on a train that was scheduled to stop at the station of Haigler to which point they held tickets. Nor does it allege that the train on which they took passage would or should stop at said station under any rule or regulation of the railroad company. The petitions were therefore defective. (Ohio & M. R. Co v. Hatton, 60 Ind. 15; Pittsburg, C. & St. L. R. Co. v. Nuzum, 50 Ind, 141; Ohio & M. R. Co. v. Applewhite, 52 Ind. 540; White v. Evansville R. Co., 33 N.E. [Ind.], 275; Chicago & St. L. R. Co. v. Bills, 104 Ind. 17.)
It was the duty of the plaintiffs to inform themselves by proper investigation and inquiry whether the train on which they took passage would stop at the station of their destination. The railroad company had a right to regulate the running of its trains, arranging for the through fast trains to make only certain stops, and for other trains to run as local trains and make all the stops. It was the duty of the plaintiffs under the law to get off at some station before reaching Haigler where the train did stop, after being notified by the conductor that it would not stop at Haigler; or they might properly pay their fare from Haigler west to the next station at which the train did stop, and stay on the train to such station. (Chicago & A. R. Co. v. Randolph, 53 Ill. 515; Texas R. Co. v. Ludlam, 57 F. 484; Beauchamp v. I. & G. N. R. Co., 56 Tex. 239; Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277; Platt v. Chicago & N. W. R. Co., 21 Am. & Eng. R. Cas. [Wis.], 319; Duling v. Philadelphia, W. & B. R. Co., 6 A. [Md.], 592; Pittsburgh R. Co. v. Lightcap, 34 N.E. [Ind.], 243; Texas P. R. Co. v. White, 17 S.W. [Tex.], 419; Deitrich v. Pennsylvania R. Co., 71 Pa. 433; Chicago & E. R. Co. v. Field, 34 N.E. [Ind.], 407; Sira v. Wabash R. Co., 21 S.W. [Mo.], 906; Pittsburgh R. Co. v. Klitch, 37 N.E. [Ind.], 560; Galveston, H. & S. A. R. Co. v. Kimelrew, 27 S.W. [Tex.], 631; Church v. Chicago, M. & St. P. R. Co., 60 N.W. [S. Dak.], 854.)
When the plaintiffs were notified that they were on the wrong train, and refused to get off when directed so to do by the conductor, they became trespassers and their forcible ejectment at Benkleman was rightful. (Atchison, T. & S. F. R. Co. v. Gants, 17 P. [Kan.], 60; Galbraith v. Flemming, 27 N.W. [Mich.], 581; Peabody v. Oregon R. & N. Co., 26 P. [Ore.], 1053; Mahoney v. Detroit City R. Co., 52 Am. & Eng. R. Cas. [Mich.], 581; Chicago, St. L. & P. R. Co. v. Bills, 104 Ind. 15; Townsend v. New York C. & H. R. R. Co., 56 N.Y. 301.)
Plaintiffs sought to recover damages and expenses sustained and incurred in going into the country after they were ejected. Such damages are too remote and contingent and do not in any manner relate to the contract made with the railroad company nor were they the proximate results of the alleged violation of the company's contract. (Sira v. Wabash R. Co., 21 S.W. [Mo.], 905; Selleck v. Lake S. & M. S. R. Co., 23 Am. & Eng. R. Cas. [Mich.], 340; Lewis v. Flint & P. M. R. Co., 54 Mich. 55; McLary v. Sioux City & P. R. Co., 3 Neb. 53; City of Crete v. Childs, 11 Neb. 253.)
Webster, Rose & Fisherdick and J. H. Grimm, contra:
There was no prejudicial error in overruling the motion to strike from the petition the language attacked. (Baltimore & O. R. Co. v. Bambrey, 16 A. [Pa.], 67; Head v. Georgia P. R. Co., 79 Ga. 359.)
The plaintiff had a right to assume that all of defendant's agents understood their duties and would perform them; and if he performed his he could stand upon his contract, and upon his relation as passenger, which the contract generated. (Alabama G. S. R. Co. v. Heddleston, 3 So. Rep. [Ala.], 53; South & N. A. R. Co. v. Huffman, 76 Ala. 496.)
A passenger wrongfully evicted from a train does not forfeit his right of action against the road for his injuries merely by reason of having insisted, however strenuously, on his right to passage, and by having resisted the assailant who wrongfully expelled him. (Louisville, N. A. & C. R. Co. v. Wolfe, 27 N.E. [Ind.], 606; St. Louis, A. T. R. Co. v. Mackie, 9 S.W. [Tex.], 451; Shepard v. Chicago, R. I. & P. R. Co., 41 N.W. [Ia.], 564; Baltimore & O. R. CO. v. Bambrey, 16 A. [Pa.], 67; Chicago, St. L. & P. R. Co. v. Bills, 20 N.E. [Ind.], 775; Sternberg v. State, 36 Neb. 307.)
The opinion contains a statement of the case.
John and Eman Spirk commenced separate actions against the Chicago, Burlington & Quincy Railroad Company to recover damages alleged to have accrued in their favor on account of their unlawful and wrongful expulsion, prior to arrival at their destination, from one of the trains of the company upon which they were passengers. The alleged causes of action had their origin in the same state of facts; hence after issues joined the causes were, on motion presented therefor, consolidated, the evidence introduced but once and the one jury returned a verdict thereon in each case favorable to plaintiffs. The company has prosecuted error proceedings to this court.
Before answer there was a motion interposed in behalf of the company, in each case, to strike out of the petitions certain portions thereof quoted in the motion. The refusal of the trial court to act in accordance with these motions is the subject of one assignment of error. If the matter sought to be stricken out of the pleadings contained anything immaterial, which we need not now decide, if it also contained any material averment or averments, which it clearly did, it was proper to overrule the motions, and there was no error in so doing. There was no prejudicial or available error in the overruling of the motions to strike out disclosed by the record presented to this court.
After the issues had been joined and the cases called for trial, at the inception of the introduction of evidence on behalf of defendants in error, counsel for the plaintiff in error objected to the reception of any evidence, on the ground that the facts stated in the petitions were insufficient to constitute a cause of action. This was overruled; and the action of the court in this regard is assigned and urged as error. Where, as in this case, the objection to the sufficiency of a petition, that it does not state a cause of action, is not interposed until on the trial, the pleading will be liberally construed, and if possible sustained. ( Roberts v. Taylor, 19 Neb. 184, 27 N.W. 87.) Read and interpreted in accordance with the foregoing rule, the petitions herein were sufficient and not open to the criticism urged against them, viz., that it did not appear that defendants in error were at the time rightfully on the train from which they alleged they were ejected. The petitions disclosed that the defendants in error purchased tickets, which entitled them to a safe passage on or over plaintiff in error's road from a named starting point to a designated destination, and that they became passengers on said railroad accordingly, and took seats in the cars of plaintiff in error, to be carried to their journey's end, and were carried directly toward their destination until a station called Benkleman, on the line of road, was reached, where they were unlawfully and forcibly ejected from the train or car in which they were riding. The foregoing is, in substance and in short, a statement of the portions of the pleadings attacked, and the averments were, we think, sufficient to show a cause of action in favor of the parties seeking redress for alleged wrongs.
The evidence discloses that the defendants in error were citizens and residents of Wilber, in Saline county, this state, that at the time of the trip, of which some of the incidents and circumstances form the basis of these suits, certain matters of business rendered it necessary that they go to Haigler, a station on the line of road of the company, plaintiff in error, to be there met by someone, and be taken from there twenty-five or thirty miles across the prairie to meet a party or parties, with whom defendants in error had certain affairs to transact, or with whom they were to consult. The brothers called, according to the evidence of the company's agent at Wilber, on him, separately, a short time prior to the projected travel, and made certain inquiries in regard to the arrangement of the running of the trains by which they could reach their desired destination and were furnished with the information. On Saturday, June 10, 1893, they boarded a train of plaintiff in error at Wilber, paying their fare to Wymore to the conductor on the train; at the last mentioned station they purchased tickets which entitled them respectively to a continuous passage to Haigler, and entered the train which was then standing at Wymore, and which was the proper one for the portion of their journey between Wymore and Oxford Junction, and it contained a chair car and a "Pullman," which were destined to run through to Denver, Colorado, the other cars of this train going no farther than the junction at Oxford. The Pullman and chair car, to which we have just referred, were to be and were attached to a "local" train which passed through Oxford Junction on its run from Chicago to Denver, and hauled by the local westward as far as McCook, where they were to be and were detached from the local and attached to another train, a through passenger train running between Chicago and Denver, to be taken to the latter place. This was known...
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