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

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: 67 N.W. 8,48 Neb. 161
• Parties: CHICAGO, B. & Q. R. CO. v. HYATT.
• Decision Date: 21 April 1896

48 Neb. 161
67 N.W. 8

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

Supreme Court of Nebraska.

April 21, 1896.

Syllabus by the Court.

1. The clerk of the district court is clothed with the power to sign and allow a bill of exceptions, when it is made to appear by affidavit that the trial judge is absent from his district.

2. This court will take judicial notice of the boundaries of a judicial district, and of the counties included therein.

3. It is the settled law of this state that the term “criminal negligence,” as employed in section 3, art. 1, c. 72, Comp. St., means gross negligence, such as amounts to a reckless disregard of one's own safety and a willful indifference to the consequences liable to follow.

4. Where a passenger knowingly jumps from a moving train, under such circumstances as to render the act obviously and necessarily perilous, and to show a willful disregard of the danger incurred thereby, it will prevent a recovery for the injuries received therefrom. Railroad Co. v. Landauer, 54 N. W. 976, 36 Neb. 642.

5. Held, under the facts proven in the case, that plaintiff was not guilty of such negligence in alighting from a moving train as to defeat a recovery for injuries received therefrom. Railroad Co. v. Porter, 56 N. W. 808, 38 Neb. 226, followed.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Elizabeth Hyatt against the Chicago, Burlington & Quincy Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

[67 N.W. 8]

T. M. Marquett, J. W. Deweese, and J. A. Kilroy, for plaintiff in error.

C. M. Parker and M. B. Reese, for defendant in error.

NORVAL, J.

This was an action by Elizabeth Hyatt against the Chicago, Burlington & Quincy Railroad Company, to recover damages for personal injuries received in alighting from defendant's train, in the town of Tamora, in Seward county. The jury found a verdict in favor of the plaintiff for $500, and also made and returned therewith the following special findings: “(1) How long did the train stop at the station at Tamora at the time complained of? Answer. One and a half minutes. (2) How fast was the train running at the time the plaintiff got off the same? Answer. About five miles an hour. (3) Did the conductor or any of the trainmen direct or request her to get off at the time she did, and after the train was in motion? Answer. No. (4) Did the plaintiff know that the train was in motion and running at the time that she came out onto the platform to get off, and about what part of the car was she in when she knew that the train had started to run again? Answer. Yes; near the center of the car. V. A. Markle, Foreman.” Judgment was rendered for the plaintiff upon the general verdict, from which the railroad prosecutes error to this court.

We will first give attention to the objection of the plaintiff to the consideration of the bill of exceptions, which was not signed and allowed by the trial judge, but by the clerk of the district court. The authority of the latter to sign the bill of exceptions is now disputed. It has been frequently held that power is not conferred upon the clerk of the district court to settle a bill of exceptions unless the trial judge is dead, or is prevented from doing so by reason of sickness or absence from his district, or the parties to the suit or their counsel have agreed upon the bill, and attached thereto their written stipulation to that effect. Scott v. Spencer, 42 Neb. 632, 60 N. W. 892;Glass v. Zutavern, 43 Neb. 334, 61 N. W. 579;Nelson v. Johnson, 44 Neb. 7, 62 N. W. 244;Yenney v. Bank, 44 Neb. 402, 62 N. W. 872;School Dist. v. Cooper, 44 Neb. 714, 62 N. W. 1084;Martin v. Fillmore County, 44 Neb. 719, 62 N. W. 863;Griggs v. Harmon, 45 Neb. 21, 63 N. W. 125;Rice v. Winters, 45 Neb. 517, 63 N. W. 830;Mattis v. Connolly, 45 Neb. 628, 63 N. W. 918. The draft of the proposed bill was returned by counsel for plaintiff without any amendments being suggested, but neither the parties nor their attorneys agreed in writing to the bill. It was not, however, invalid for that reason alone. The clerk has

[67 N.W. 9]

the authority to allow and sign a bill of exceptions, even though it has not been agreed to by the parties to the litigation, where the judge is dead, or he is prevented, by sickness or absence from the district, from settling the bill. It is claimed that there is no showing that any one of these events has occurred. In this counsel for plaintiff are mistaken. There is attached to the bill the affidavit of J. W. Deweese, one of the defendant's attorneys, setting forth “that the Honorable A. S. Tibbets, judge of said court before whom the said cause was tried, is absent from the said county of Lancaster, and has been ever since the said bill of exceptions was returned by plaintiff's attorneys, and that said defendant is prevented, by reason of such absence, from having the bill settled and signed by the said judge,” and praying that the clerk of the court may settle and sign the bill as provided by statute. The clerk, in his certificate allowing the bill, recites that the defendant had filed an affidavit setting forth the absence of the trial judge from the county of Lancaster. A lawful excuse was shown for not having the trial judge settle the bill, and such an excuse as justified the clerk in signing it. While it is...