Chi., R. I. & P. R. Co. v. Hambel

• Decision Date: 05 March 1902
• Citation: 89 N.W. 643,2 Neb. [Unof.] 607
• Parties: CHICAGO, R. I. & P. R. CO. v. HAMBEL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 607

89 N.W. 643

CHICAGO, R. I. & P. R. CO.

v.HAMBEL.

Supreme Court of Nebraska.

March 5, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Jefferson county; Letton, Judge.

“Not to be officially reported.”

Action by Mary M. Hambel, executrix, against the Chicago, Rock Island & Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.W. T. Evans, Billingsley & Greene, and E. H. Hinshaw, for plaintiff in error.

Heasty & Clapp, for defendant in error.

DAY, C.

On August 9, 1894, William O. Hambel was killed in a railroad wreck while a passenger upon one of the trains of the Chicago, Rock Island & Pacific Railroad Company. The cause of the wreck was the criminal act of a third person, and was not attributable to any fault or negligence upon the part of the railway company. His executrix brought this action in the district court of Jefferson county to recover damages therefor, and upon the trial recovered a judgment for $5,000, to review which the defendant has brought the case to this court on error.

A vigorous argument is made assailing the constitutionality of section 3, art. 1, c. 72, Comp. St., which declares: “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers, while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured or where the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.” The constitutionality of this section has been considered by this court and passed upon adversely to the contention of the defendant. In Railway Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, a case arising out of the same wreck as the case at bar, it was held that “section 3, art. 1, c. 72, Comp. St., is not inimical to the fourteenth amendment of the constitution of the United States, nor to section 3, art. 1, of the constitution of this state, as tending to deprive railroad companies of their property without due process of law.” This case was taken on a writ of error to the supreme court of the United States, and has recently been affirmed by that court. 22 Sup. Ct. 229, 46 L. Ed. 339. The validity of the statute has also been upheld in Railway Co. v. Porter, 38 Neb. 226, 56 N. W. 808;Railway Co. v. Chollette, 41 Neb. 578, 59 N. W. 921;Railway Co. v. Young, 58 Neb. 678, 79 N. W. 556. We adhere to the rule as announced in these cases.

Upon the trial the defendant offered to show that the deceased, at the time he was killed, was riding upon a free pass, issued to him as a gratuity, and that by the terms thereof he assumed all risks of accidents, and also agreed that the company should not be liable for injuries to his person while using the same. We think the trial court was right in excluding this testimony. This precise question was before this court in Railroad Co. v. Collier (No. 9,835, an unreported case). In that case it was held that the provisions of section 3, art. 1, c. 72, above quoted, prevent any limitation on the liability of a railroad company for a passenger's safety unless within the exceptions provided in the section, and that section 5 of the same chapter did not impliedly give the right to a railway company to limit its liability under section 3 by stipulation. Without being discussed, the same rule is announced in Railway Co. v. Tietken, 49 Neb. 130, 68 N. W. 336, 59 Am. St. Rep. 526, and Railroad Co. v. Witty, 32 Neb. 275, 49 N. W. 183, 29 Am. St. Rep. 436.

It is also urged that the court erred in admitting in evidence over the objection of the defendant the Carlisle Tables of Expectancy, as found on page...