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

• Decision Date: 29 December 1893
• Citation: 38 Neb. 90,57 N.W. 522
• Court: Nebraska Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. GRABLIN.

38 Neb. 90

57 N.W. 522

CHICAGO, B. & Q. R. CO.

v.GRABLIN.

Supreme Court of Nebraska.

Dec. 29, 1893.

Dissenting opinion. For majority opinion, see 56 N. W. 796.

Maxwell, C. J., dissenting.

MAXWELL, C. J., (dissenting).

I am unable to give my assent to the opinion in this case, for the following reasons: In the petition as set out in the opinion it is alleged that the train “was so negligently and carelessly run without air brakes, and without proper care, and without proper signals or alarm of its approach, by reason whereof the deceased was unaware of its approach.” The evidence objected to as set forth in the opinion was “that, if the engineer in charge of the locomotive had been observing a proper and careful lookout ahead, he could have seen the boy in time to have brought the train to a stop before it reached the point where the boy was;” and it was held in the above opinion that this proof was not admissible under the pleadings, and the case on that ground reversed. To this I cannot give my assent. The allegation that the train was run without proper care at the place where the death occurred would admit any evidence tending to show negligence or want of due care. Negligence is the ultimate fact to be pleaded, and it forms part of the act from which injury arises. An allegation of negligence or carelessness as applied to the conduct of a party is not a mere conclusion of law, but a statement of an ultimate fact. Rolseth v. Smith, (Minn.) 35 N. W. 565;Clark v. Railroad Co., (Mich.) 28 N. W. 914; Maxw. Code Pl. 252, and cases cited. Any proof tending to show a want of due and proper care is admissible under the allegations of the petition, and the court cannot, without a forced construction, limit these words to be the want of air brakes, or the failure to blow the whistle or ring the bell. The charge is general that the train was run without proper care. The language evidently refers to the running of the train. Under the rule, language is to be given its ordinary and natural meaning, the same as it would have in a contract or other instrument. In my view, great injustice is done by the reversal upon the ground stated. The judgment should be affirmed.