Boyd v. Chi., B. & Q. R. Co.

• Decision Date: 04 December 1914
• Docket Number: No. 17800.,17800.
• Citation: 97 Neb. 238,149 N.W. 818
• Parties: BOYD v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

97 Neb. 238

149 N.W. 818

BOYD

v.CHICAGO, B. & Q. R. CO.

No. 17800.

Supreme Court of Nebraska.

Dec. 4, 1914.

Syllabus by the Court.

“An application for a change of venue in a civil action should be denied, unless it is made to appear to the court that a fair and impartial trial cannot be had in the county where the action is pending; the fact that there are numerous persons in the county that are biased and prejudiced against a party to a suit will not justify a court in granting a change of venue, on the application of such party, if it appears that a fair and impartial jury can be had, and a fair trial had therein.” Northeastern N. R. Co. v. Frazier, 25 Neb. 42, 40 N. W. 604.

“Unless an abuse of discretion is shown, this court will not disturb the ruling of the lower court upon a motion for a change of venue.” Hinton v. Atchison & N. R. Co., 83 Neb. 835, 120 N. W. 431.

“In passing on a motion for a change of venue, the district court is vested with a sound legal discretion, and his ruling thereon will not be disturbed unless it appears that he has been guilty of an abuse of such discretion.” Smith v. Coon, 89 Neb. 776, 132 N. W. 535.

In jury trials all questions of fact and upon conflicting and material evidence must be submitted to and decided by the trial jury. In such case, the trial court has no authority to withdraw such evidence from the jury and direct the return of a verdict in favor of either party.

This case distinguished from Albers v. Chicago, B. & Q. R. Co., 95 Neb. 506, 145 N. W. 1013.

Instructions given and refused are examined, and no error requiring a reversal of the judgment is found.

Appeal from District Court, Lancaster County; Cornish, Judge.

Action by William Boyd, Junior, against the Chicago, Burlington & Quincy Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.

Sedgwick, J., dissenting.Byron Clark and Jesse L. Root, both of Omaha, and Barton L. Green and Strode & Beghtol, all of Lincoln, for appellant.

A. G. Wolfenbarger and G. W. Berge, both of Lincoln, for appellee.

REESE, C. J.

This is an action to recover damages alleged to have been sustained by the destruction of growing crops in the Middle creek valley on August 29, 1910, by reason of the same having been flooded with high water by which, it is alleged, plaintiff's crops were destroyed. It is alleged and contended by plaintiff that the proximate cause of the flooded condition of plaintiff's land and crops was the faulty construction of certain embankments thrown up by defendant in the building of its track yards in said valley, which changed the flow of the surface water in flood times from its former habit of spreading out over the valley to and confining it to the south side of said embankments, thereby greatly increasing the flow upon that side to the extent of overflowing plaintiff's land, which is upon the south side, and destroying his crops thereon, as aforesaid. The amount claimed in the petition was $1,000. A jury trial was had, which resulted in a verdict in favor of plaintiff for the sum of $500. A motion for a new trial was filed and overruled, when judgment was entered upon the verdict. Defendant appeals.

[1][2][3][5] The first question for consideration is the ruling of the district court on a motion for a change of venue filed by defendant in the case of William Albers against this defendant (Albers v. Chicago, B. & Q. R. Co., 95 Neb. 506, 145 N. W. 1013), but which by stipulation of the parties was considered on the hearing of this case. As shown by the opinion in the Albers Case, the motion was supported by the affidavits of 113 persons, and opposed by the affidavits of 250 persons. It is stated in plaintiff's brief that there were about 140 affidavits supporting the change and 245 affidavits in opposition thereto. Whether the affidavits presented on the hearing in this case are the same in number as in that case we have no means of knowing, except as is furnished by the stipulation and the acts of the parties; but we will assume that they are substantially the same, some additional affidavits having probably, been filed after the hearing of the Albers Case. It is said in defendant's brief that “the showing made by the defendant and by the respective plaintiffs in all of the cases is identical.” It is quite probable that this is substantially correct, although the number of affidavits filed by defendant was 113, instead of 140 as stated by plaintiff. Upon the first consideration of this part of the case, we were strongly inclined to adopt defendant's view that:

“The instant case, therefore, is ruled by the decision in the cited case (Albers v. Chicago, B. & Q. R. Co., 95 Neb. 506, 145 N. W. 1013), and the appellant's right to a judgment of reversal with a direction to grant a change of venue is absolute.”

But, upon reflection, and in view of the apparent confusion as to the affidavits, and the further fact that that case was not connected with this one, the parties plaintiff being different persons, the property in dispute being entirely different and the averments and evidence referring to different property, one separated from the other a considerable distance and upon a different stream, and the alleged construction of defendant's improvements being different from that attached in the Albers Case, and the further fact that the damage alleged in this case is said to arise from an overflow in 1910, and in that case in 1908, we have concluded that the question requires an independent investigation, but not forgetting to give due and respectful consideration to the holding in that case, by a majority of the court, to the effect that there was an abuse of discretion on the part of the district court in overruling the defendant's motion for a change of venue in that case.

In defendant's brief, much stress is placed upon the affidavit of one Gottfried Herzog. We have examined his affidavit with care for the purpose of determining the weight to which it is entitled upon this question in this case. The affidavit is quite long, and cannot be set out here in full. It is largely composed of the conclusions of the affiant, instead of the statements of fact within his knowledge, and of matters which do not throw any light upon the views of the people of Lancaster county with reference to this particular suit. He says that continuously since the flood of July, 1908, it has been the topic of conversation among those owners, friends, and lawyers in the city of Lincoln and county of Lancaster, and affiant has repeatedly heard conversations between the owners and claimants when they were alone and also when their attorneys or agents were present, and it was a matter of frequent comment and argument, that juries of the county would find for the claimants and that the railway company could not win; that meetings have been held in said neighborhoods by numbers of said owners, aggregating as many as 200 at one time and other times 75 or 50, and in those meetings the question of defendant's liability was discussed, and property owners would agree to testify for each other in their claims for damages and suits, and written memoranda would be made as to what each one would testify to for the other, and those meetings are regularly held upon the last Tuesday of each month, and sometimes special meetings are called at other dates; that affiant is informed that at one meeting a lawyer was present and talked to the claimants and told them why they should commence suits; that he does not remember the name of the lawyer, but heard several property owners discuss the matter afterward; that the 400 owners having claims in the salt basin are scattered over a territory covering 60 blocks in the city of Lincoln and its additions; that at the time of the flood affiant read descriptions in the newspapers published in Lincoln detailing the flood and the loss of property and life and the accompanying exciting events; that affiant was a witness in one of the cases tried. A consideration of this part of the affidavit must satisfy any fair-minded person that, if true, it could have no possible bearing upon the question of the mental attitude of the public in Lancaster county so far as this particular case is concerned, for it must be observed that practically all he says has reference to the flood in 1908, two years before plaintiff's alleged cause of action arose and with reference to conditions in the salt basin, far removed from plaintiff's land. That there was a disastrous flood in the salt basin in 1908 all admit. As bearing upon the matter of bias and prejudice in the minds of the people of the county, he says that he is well acquainted with men living in the county outside of the city of Lincoln and has heard 10 or 15 different parties say that they thought that the railroad company should pay and ought to pay the claims for damages, referring to the salt basin flood of 1908; that from numerous conversations he has heard between different men, both in the city of Lincoln and out over the county, there is a general prevailing prejudice against the railroad company on account of the flood damages; and that he does not believe that the railroad company can have a fair and impartial trial before an unprejudiced jury in Lancaster county. Other parts of the affidavit are of like tenor. He closes the affidavit by saying that “he has no personal interest in the subject-matter at this time, nor has he had any such personal interest since about four months ago”--which is at least suggestive, but this has no reference as to the case now in hand. He gives his business as that of a carpenter, his age 44 years, that he has resided in Lincoln about seven years, and now resides on what is known as the “salt basin,” where he has resided for six years. Even were the subject of the meetings of the complainants a material matter upon the question of the change of venue in the Albers Case, he gives no hint that he...