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

• Decision Date: 10 July 1902
• Citation: 91 N.W. 364,65 Neb. 540
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. MARTELLE.

65 Neb. 540

91 N.W. 364

CHICAGO, B. & Q. R. CO.

v.MARTELLE.

Supreme Court of Nebraska.

July 10, 1902.

Syllabus by the Court.

1. The question of the right to file amended pleadings during the trial is one which is confided to the discretion of the trial court, and, unless the record clearly shows an abuse of discretion, the rulings thereon will be sustained.

2. The third subdivision of section 92 of the Code of Civil Procedure provides that the petition shall contain “a demand of the relief to which the party supposes himself entitled, if the recovery of money be demanded the amount thereof shall be stated.” Will a petition to recover damages for a personal injury, which contains no demand for any relief whatever, sustain a verdict and judgment therefor,--quære?

3. A passenger who has been carried past his place of destination by a train which did not stop for him to alight, and who, without notice to or knowledge of those in charge of the train, simply to avoid being carried to the next station, jumps from the steps of the car to the ground while the train is in rapid motion, and is injured thereby, cannot maintain an action against the railroad company to recover damages therefor. Railroad Co. v. Landauer, 54 N. W. 976, 36 Neb. 642, approved and followed. Railroad Co. v. Chollette, 49 N. W. 1114, 33 Neb. 143,Railway Co. v. Porter, 56 N. W. 808, 38 Neb. 226, and Railroad Co. v. Hyatt, 67 N. W. 8, 48 Neb. 161, distinguished and approved.

Commissioners' opinion. Department No. 2. Error to district court, Butler county; Bates, Judge.

Action by E. H. Martelle against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Sullivan, C. J., and Oldham, C., dissenting.J. W. Deweese and F. E. Bishop, for plaintiff in error.

Matt Miller, for defendant in error.

BARNES, C.

This case was tried in the district court of Butler county, and resulted in a verdict and judgment against the defendant railroad company for the sum of $3,500. A motion for a new trial was overruled, and the case comes to this court on a petition in error. The amended petition, upon which the case was finally submitted to the jury, is as follows (omitting title): “The plaintiff complains of the defendant, and for cause of action alleges and says: (1) That said defendant is a corporation duly organized and existing under and by authority of the laws of the state of Nebraska, and is operating a railroad from Ashland, Nebraska, to Schuyler, Nebraska, and is a common carrier of passengers and freight for hire on said railroad. (2) That on the 9th day of January, 1898, and while the defendant was so operating said railroad, it received the plaintiff as a passenger in one of its cars at Schuyler, Nebraska, to convey him from said place to Edholm, Nebraska, for the sum of thirteen cents paid by the plaintiff to the defendant. (3) That on said day, in managing and conducting the train and cars on which the plaintiff herein was a passenger, the defendant and its employés were so negligent and careless that said train on approaching the station at Edholm commenced to slow up to stop at said station, but on arriving at said station did not come to a standstill, but nearly stopped just after arriving, at a slow rate of speed passing the platform at said station; and the plaintiff herein, believing he could get off said car on which he was riding, started to alight from said car, and, just as he was about to alight and started to alight from said car, the said train was given a sudden jerk, which then and there caused the plaintiff, when alighting on the ground on his feet, to fall over, and, then falling over, he was injured by having his back and spinal cord hurt. (4) By reason of which the plaintiff was sick, and has been lame and weak and lame in his back for a space of nine months, and unable to attend to his business, and is still in such condition, and has expended for medical attendance before the commencement of this suit, to Dr. Murphey, of Octavia, Nebraska, the sum of $25, in all to his damage in the sum of $5,000.” To this petition the railroad company filed the following answer (omitting title): “Now comes the defendant above named, and, for answer to the petition filed by the plaintiff, says that it is a corporation duly organized and existing under and by virtue of the laws of the state of Illinois, and that as such it owns and operates the line of railroad referred to in said petition, and did own and operate the same at the time referred to in said petition. Further answering said petition, this defendant says that it is informed and believes that the plaintiff was a passenger on defendant's train running from the station of Schuyler to Edholm at the time stated in said petition; but the defendant denies each and every allegation stated in said petition, except such facts as are stated in this answer. The defendant further says that if the plaintiff got off of said train while the same was in motion, as stated in his petition, or otherwise, and injured himself in getting off, that such injury was sustained by reason of his own carelessness, negligence, and misconduct, and without any fault of this defendant. Wherefore the defendant prays judgment against the plaintiff for costs.” The reply was a general denial. The plaintiff in the court below was allowed to file his amended petition after the evidence on his part was introduced, to which the defendant company objected, and had its exceptions allowed, and this ruling is assigned as error.

1. The question of amendments to pleadings is one which calls for the exercise of the discretion of the trial court, and, unless it is shown that there was an abuse of such discretion, the rulings upon such matters will be sustained. In this case the defendant company made no application for a continuance on account of the filing of the amended petition, and the record fails to show that the amendment caused any surprise, or was the occasion of any injury to the rights of the company, or in any manner necessitated a change in the trial. We hold that there was no error in allowing the amended petition to be filed.

2. It is contended that the court erred in overruling the objection to the introduction of any evidence on the part of the plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action. It is urged that, inasmuch as the amended petition contains no prayer for a judgment, it is faulty and defective, and will not support or sustain the verdict and judgment in this case. We are satisfied that the judgment of this court must turn upon another question, and therefore we do not decide this point. We will say, however, that in all of the cases cited in support of the amended petition there was some kind of a prayer for judgment, however defective it may have been. In this case there is no prayer for any judgment whatever. It is true that the prayer for relief is no part of the facts constituting the cause of action, yet the Code requires that the petition shall contain a prayer for such relief as the plaintiff deems himself entitled to. Will a petition which contains no prayer for any relief whatever sustain a verdict and judgment,--quære?

3. The defendant company at the close of all of the evidence moved the court to instruct the jury that, under the pleadings and the evidence, the plaintiff was not entitled to recover, and to return a verdict for the defendant. This motion was overruled. The ruling was excepted to, and is now assigned as a ground for a reversal of the judgment of the lower court. Giving to the amended petition in this case a fair and reasonable construction, we find that it charges the railroad company with negligence in not stopping its train of cars at Edholm, the destination of the plaintiff, a sufficient length of time to permit him to alight therefrom in safety. It is true that the petition contains an allegation that “just as the plaintiff went to alight from the car, and just as he was about to alight and started to alight therefrom, the train was given a sudden jerk, which then and there caused the plaintiff, when alighting on the ground on his feet, to fall over, and he was injured thereby”; but the charge of negligence is not based on this allegation. An examination of the evidence shows that it was not sufficient to sustain an allegation of negligence on this ground. Without considering any of the evidence of the defendant company, and giving the most liberal construction to that introduced by the plaintiff in support of his cause of action, we find it fairly established that the plaintiff in the court below purchased a ticket and became a regular passenger on the defendant's train from Schuyler to Edholm; that it was dark when the train reached that place; that the company did not stop its train so as to allow him to alight at his place of destination; that it slowed its train as it passed the station, so that the plaintiff's companion, Streeter, got off, at a place about 20 feet beyond the depot platform; that the speed of the train was accelerated with a sudden jerk, which is the jerk complained of by the plaintiff, and thereafter continually increased its speed until the plaintiff finally jumped off at a point some 150 feet east of the station; that the jerk spoken of occurred just as the plaintiff commenced to get off; that he remained on the steps of the car platform from that time until he passed several obstructions which he saw, and when clear of them he stepped or jumped from the steps to the ground; that by this time the train was going with such speed as to cause him to fall down after alighting on his feet, and in that manner he sustained the injuries of which he complains. It is shown that he did not request the conductor to stop the train and allow him to alight, and that none of the persons in charge thereof knew of his intention to get off...