Atchison, Topeka & Santa Fe Railroad Co. v. Meek
| Decision Date | 07 October 1896 |
| Docket Number | 6806 |
| Citation | 68 N.W. 509,49 Neb. 295 |
| Parties | ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JAMES G. MEEK ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Nuckolls county. Tried below before MORRIS, J.
REVERSED.
A. A Hurd, Searle & Coleman, G. R. Peck, and W. Littlefield, for plaintiff in error.
Buck & McConnell, contra.
References Porter v. Chicago & N. R. Co. 1 Neb. 15; Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552; Katzenstein v. Raleigh & G. R. Co. 78 N.C. 286.
This is a petition in error and brings up for review a judgment of the district court for Nuckolls county whereby the defendants in error, as plaintiffs below, were permitted to recover on account of the imputed negligence of the plaintiff in error, defendant below, as a common carrier while engaged in transporting certain cattle from Osceola, in the territory of New Mexico, to Superior, in this state, whereby certain of said cattle were killed and others permitted to escape. The answer contains a denial of the negligence charged and an allegation that for a valuable and sufficient consideration the plaintiffs below executed certain agreements, in writing, the effect of which was to limit the liability of the defendant railroad company as a common carrier, and whereby the said plaintiffs expressly assumed all risk of damage on account of the loss or escape of said cattle from any cause whatever, except the willful acts of the defendant's agents or servants. The reply is a general denial of the allegations of the answer.
Of the several questions raised by the assignments of error and discussed by counsel for the respective parties we shall, for reasons hereafter appearing, notice one only, viz. that relating to the refusal of the district court to suppress the deposition of Samuel S. Rogers, taken at Wilcox, in the territory of Arizona, and the subsequent admission in evidence of said deposition over the objection of the defendant company. The materiality of such evidence to the issues presented is apparent from the fact that the witness above named superintended the assorting and loading of the cattle in question, some twenty cars in all, and testified to their age, condition, and value at the time and place of shipment. He also accompanied one consignment of said cattle from New Mexico to their destination at Superior, and testified to certain acts by the servants of the defendant company while en route now relied upon to sustain the allegation of negligence. The ground of the objection to said deposition is that the only notice of the taking thereof was served upon one Taylor, the defendant's station agent at Superior, who was not the agent or attorney of record of the defendant company within the meaning of section 378 of the Code of Civil Procedure, and was not at the date of such service authorized to accept or waive service of any notice whatever in said cause, or in any suit or action in which said defendant was or might be a party. There was, it should be observed, no appearance by the defendant at the taking of said deposition, and no waiver in its behalf of the notice prescribed by law. The question, therefore, distinctly presented by this record is the sufficiency of the service so made. We here quote section 378, above referred to, adopting the punctuation employed in the Revised Statutes of 1866 and the General Statutes of 1873, rather than that of the Compiled Statutes, in which a comma has by the compiler or compositor been inserted after the word "agent" "Prior to the taking of any deposition, unless taken under a special commission, a written notice, specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon...
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