Chi., R. I. & P. Ry. Co. v. Zernecke
| Decision Date | 07 March 1900 |
| Court | Nebraska Supreme Court |
| Parties | CHICAGO, R. I. & P. RY. CO. v. ZERNECKE. |
1. By section 3, art. 1, c. 72, Comp. St., a right of action is given to a person for all injuries sustained while a passenger of a railroad company, except where the injury was occasioned by his own criminal negligence, or by his violation of some express rule or regulation of the carrier, actually brought to his notice.
2. In an action for injuries sustained by derailment of a train on which plaintiff was a passenger, the statute creates a presumption that the accident was caused by the negligence of the carrier, or by its wrongful act, neglect, or default.
3. Said section 3, art. 1, c. 72, Comp. St., making carriers liable, in the absence of negligence, for injuries to passengers, is within the police power of the state.
4. Chapter 21, Comp. St., is not amendatory of section 3, art. 1, c. 72, Comp. St., nor do the two acts in any wise conflict, one with the other.
5. Under chapter 21, Comp. St., known as “Lord Campbell's Act,” a right of action is given the legal representative of one who has died in consequence of injuries sustained while being transported by a railroad company, where the injured party could have maintained an action had he survived.
6. All statutes in pari materia must be taken together, and construed as if they were one enactment, and, if possible, effect given to every provision.
7. Section 3, art. 1, c. 72, Comp. St., is not inimical to the fourteenth amendment of the constitution of the United States, or 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.
8. Instructions should be construed together, and if, when so considered, they state the law correctly, applicable to issues and evidence, they will be sustained.
9. Instructions in this case examined, and held free from reversible error.
Error to district court, Thayer county; Hastings, Judge.
Action by Bertha Zernecke against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.W. F. Evans, L. W. Billingsley, and R. J. Greene (M. A. Low, of counsel), for plaintiff in error.
Stewart & Munger, for defendant in error.
In 1894, Ernest H. Zernecke was killed in a train wreck while a passenger of the Chicago, Rock Island & Pacific Railway Company, and his wife, as administratrix of his estate, brought this action to recover damages therefor for the benefit of herself and minor children. The train was wrecked by the criminal act of a third person, without fault on the part of the railway company. On the trial a verdict was rendered in favor of plaintiff, and judgment was entered thereon, from which the railway company comes to this court on error.
On the trial the following instruction was given by the court, to which the defendant took exception: “The jury are instructed that if you find from the evidence that Ernest H. Zernecke was a passenger being carried on the train of the defendant railway company that was derailed and wrecked near Lincoln, Nebraska, on August 9, 1894, thereby causing the death of said Zernecke, and that plaintiff is his administratrix, and she and her children had a pecuniary interest in his life, and suffered loss by his death, then you should find for the plaintiff.” Section 3, art. 1, c. 72, Comp. St., declares that “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 when 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 instruction quoted is within the provision of said section, aside from the omission to state exceptions contained in the statute that the defendant was not liable for injury resulting from the criminal negligence of the person injured, or from his violation of some expressed rule or regulation of the company, actually brought to the notice of the injured passenger. There is an entire absence of any evidence in the record before us tending to bring the case within either of the exceptions contained in said section 3; therefore the instruction was pertinent and proper, if said legislation is constitutional, and applicable to the case at bar.
The constitutionality of said section has been assumed by this court in numerous cases. Chollette v. Railroad Co., 26 Neb, 159, 41 N. W. 1106, 4 L. R. A. 135; Railroad Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114; Railroad Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Railroad Co. v. Hague, 48 Neb. 97, 66 N. W. 1000; Same v. Hyatt, 48 Neb. 161, 67 N. W. 8; Railroad Co. v. French, 48 Neb. 638, 67 N. W. 472. And the validity of said statute has been expressly decided in Railroad Co. v. Porter, 38 Neb. 226, 56 N. W. 808; Railroad Co. v. Chollette, 41 Neb. 578, 59 N. W. 921;Railway Co. v. Young (Neb.) 79 N. W. 556. The legislation is justifiable under the police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers as they were of baggage and freight, and no good reason is suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line, while the corporation must respond for any damages to his baggage or freight. It is argued by counsel for defendant below that said section 3 is not applicable to cases of injuries causing the death of a passenger, the contention being that section 1, c. 21, Comp. St., is the law governing this class of actions, and that under the provisions of said last-named statute the defendant should have been permitted to prove that the death of plaintiff's husband was not caused by any act of negligence on the part of the railway company, and that the jury should have been instructed that, before there could be a recovery, it was necessary to establish the fact that defendant company had been negligent in the premises. It is further argued that, if it be held that said first-named statute is the law governing this class of cases, then the same has been repealed by said chapter 21, which is a later enactment, and that the two are in conflict. If the two statutes are in conflict, the argument is unanswerable. But it is believed that the two statutes do not in any wise conflict one with the other. Said section 3, as already stated, makes a railroad company an absolute insurer of the safety of its passenger, save in cases falling within one or the other of the two exceptions mentioned in the statute. It gives or creates a right of action in favor of the injured passenger, and, when it is established that a person is injured while a passenger of a railroad company, a conclusive presumption of negligence arises in every case except where it is disclosed that the injury was one caused by his own criminal negligence, or by his violation of some rule of the company brought to his actual notice. On the other hand, chapter 21, Comp. St., known as “Lord Campbell's Act,” creates a right of action in favor of...
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