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

Decision Date21 April 1897
Citation70 N.W. 926,51 Neb. 167
PartiesCHICAGO, B. & Q. R. CO. v. SPIRK ET AL.
CourtNebraska Supreme Court


Syllabus by the Court.

1. A motion to strike matter out of a pleading should refer specifically to the alleged objectionable statement. If the motion includes matter which is pertinent, with that which is objected to as impertinent, and they might have been separated, the motion must be overruled.

2. Where the objection to a petition, that it does not state a cause of action, is not interposed until after the commencement of the trial of the case, the pleading will be liberally construed, and, if possible, sustained.

3. The petitions in the case at bar held to state causes of action.

4. Findings of a jury, made on consideration of conflicting evidence, will not be disturbed if there is sufficient evidence in their support.

5. Parties rightfully on a railroad train, by virtue of a contract for their carriage to an agreed destination, and who are wrongfully ejected before the journey is completed, may sue for a breach of the contract, or in an action ex delicto for tort or negligence of the carrier.

6. If for a breach of the contract, the measure of the damages will be such as may fairly be considered as arising naturally, or in the usual course of things, from the breach, or such as may reasonably be supposed to have been in contemplation of the parties to the contract when it was made, as the probable results of its breach. Hadley v. Baxendale, 9 Exch. 341.

7. If for the tort or negligence, the measure of damages will be compensation for all injuries which are directly caused or flow from the wrongful act or acts.

8. Held, that the evidence in these cases sustains findings that the defendants in error were as passengers in a car and on a train which did not stop at the station, their purposed destination, to which the tickets they had purchased entitled them to be carried; that they were not so situated by reason of their own negligence, but the negligence of the company or its employés.

9. Where passengers on a railroad train which does not stop at the station to which their tickets entitled them to be carried, and their being so situated is not the result of their own negligence, but that of the company or its employés, were ejected from the train by the conductor and other employés of the company, in obedience to a rule of the company for the guidance of the conductor in such cases, at a station other than the one to which they were to be carried, the company is liable, in an action ex delicto, for all damages which result or flow directly from the negligence.

10. Whether the negligence is the proximate cause of injuries is ordinarily a question of fact for the jury, but, if its finding in that regard is manifestly wrong, it will be set aside.

11. Some of the injuries alleged in this case, incidents of a trip across the prairie, held not to directly result or flow from the negligence or wrongful acts of the plaintiff in error, and hence not to be within the measure of damages applicable here.

Error to district court, Saline county; Hastings, Judge.

Separate actions by Eman J. Spirk and by John F. Spirk against the Chicago, Burlington & Quincy Railroad Company were consolidated, and from a judgment for plaintiffs defendant brings error. Reversed.

T. M. Marquett, J. W. Deweese, and F. I. Foss, for plaintiff in error.

Webster, Rose & Fisherdick and J. H. Grimm, for defendants in error.


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 has 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. Whereas, 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 towards 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 Wilbur, 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 some one, and be taken from there 25 or 30 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 Wilbur, 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's at Wilbur, 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, Colo., the other cars of this train going no further 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 as the “fast train” or “flyer,” and made but a few stops at any of the stations along the route. The defendants in error were, at or prior to the arrival of the train on which they were passengers at Oxford Junction, notified to change from the coach in which they were seated to the one in its rear, relatively to the position of the cars considered from the engine or forward end of the train, and they did so. Though there is some conflict as to this particular fact, we must conclude that the parties were so notified, and made the requested change, as this must have been of the findings of the jury, and had ample support in the evidence; and, further, it is borne out by the conditions then existing in regard to the cars in the train, and the proper one for them to be in, if they expected to go further west from Oxford Junction, as this rear chair car, which they were told to, and did, go into, and take seats, was the only one of that train, other than the Pullman, for passengers, which was to proceed further west towards Denver from Oxford Junction. The chair car and Pullman...

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5 cases
  • Stone v. Union Pac. R. Co.
    • United States
    • Utah Supreme Court
    • April 11, 1907
    ... ... circumstances of fact attending it." To the same effect ... are, 2 Labatt, Mast. & Serv., section 805; Chicago, B. & ... Q. R. Co. v. Spirk , 51 Neb. 167, 70 N.W. 926; ... Wright v. Railroad , 14 Utah 383, 46 P. 374; ... Ewell v. Min. Co. , 23 Utah 192, 64 P. 367; ... Thompson v ... ...
  • Zimmerer v. Fremont Nat. Bank
    • United States
    • Nebraska Supreme Court
    • February 9, 1900
    ...material, the court rightly overruled the motion. Such a motion should be narrowed to the objectionable matter alone. Railroad Co. v. Spirk, 51 Neb. 167, 70 N. W. 926;Smith v. Meyers, 54 Neb. 1, 74 N. W. 277. Observing no reversible error in the ruling complained of, the judgment of the cou......
  • Zimmerer v. Fremont National Bank
    • United States
    • Nebraska Supreme Court
    • February 9, 1900
    ... ... the motion. Such a motion should be narrowed to the ... objectionable matter alone. See Chicago, B. & Q. R. Co ... v. Spirk, 51 Neb. 167, 70 N.W. 926; Smith v ... Meyers, 54 Neb. 1, 74 N.W. 277 ...          Observing ... no ... ...
  • Chicago, Burlington & Quincy Railroad Company v. Spirk
    • United States
    • Nebraska Supreme Court
    • April 21, 1897
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