Chi., R. I. & P. Ry. Co. v. Young

Decision Date08 June 1899
CourtNebraska Supreme Court
PartiesCHICAGO, R. I. & P. RY. CO. v. YOUNG.

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Alleged errors occurring at the trial of a law action cannot be reviewed unless there is in the record authentic evidence that a motion for a new trial was overruled by the district court.

2. In an action to recover for injuries sustained by a person in consequence of the derailment of a railroad train upon which he was being transported as a passenger, it is not indispensable that the petition should allege that the injury was the result of the wrongful act or omission of the carrier.

3. The presumption in such case is that the accident was caused by the carrier's negligence, and it is unnecessary to plead what the law presumes.

4. The act of June 22, 1867 (Sess. Laws 1867, p. 88), making railroad companies liable, in the absence of negligence, for injuries to passengers on their trains, is justifiable legislation under the police power of the state. It aims to promote safety in travel, and neither deprives such companies of their property without due process of law nor denies them the equal protection of the laws.

5. Under chapter 21, Comp. St. 1897, known as “Lord Campbell's Act,” the legal representative of a person who has died in consequence of an injury sustained through the wrongful act, neglect, or default of another, has a right of action in all cases where the injured party might have maintained an action had he survived the injury.

6. Such action is for the benefit of the widow and next of kin of the deceased, and the recovery authorized is compensation for the pecuniary loss suffered. If the facts alleged in the petition do not show that the persons for whose benefit the suit was instituted had a pecuniary interest in the life of the deceased, the pleading is defective in substance.

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

Action by Halleck C. Young, administrator of Ellsworth H. Morse, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. F. Evans, L. W. Billingsley, R. J. Greene, and M. A. Low, for plaintiff in error.

Strode & Strode and Stewart & Munger, for defendant in error.

SULLIVAN, J.

Halleck C. Young, as administrator of the estate of Ellsworth H. Morse, deceased, recovered judgment against the Chicago, Rock Island & Pacific Railway Company in an action brought under the provisions of chapter 21, Comp. St. 1897. The first section of the act is as follows: “That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” The petition alleges the representative character of the plaintiff; that Morse was instantly killed by the derailment of defendant's train, upon which he was being transported as a passenger between Fairbury and Lincoln, in this state; that the deceased was at the time of the accident earning an annual salary of $1,800; and that he left, surviving him, as next of kin, his mother, brothers, and sister, who have sustained damages to the amount of $5,000.

At the threshold of the case counsel for plaintiff challenge our right to consider and decide some of the questions raised by the defendant, on the ground that there is in the record no authentic evidence that the motion for a new trial was ever ruled on, or brought to the notice of the district court in any way. Turning to the clerk's certificate, we find that this objection is entirely valid, and must, under the authorities cited, be sustained. Hake v. Woolner, 55 Neb. 471, 75 N. W. 1087;Romberg v. Fokken, 47 Neb. 198, 66 N. W. 282;Burlingin v. Baders, 47 Neb. 204, 66 N. W. 288. It is not certified, either in general or in specific terms, that there is in the transcript brought here any order of the court upon the motion. We are therefore precluded from reviewing the alleged errors occurring at the trial. The sufficiency of the petition to support the judgment is the only question properly before us for decision. This pleading is vigorously assailed on various grounds. Counsel first contend that it is defective, because it contains no direct averment that the death of Morse was the result of any wrongful act or omission of the railroad company. To this proposition we cannot assent. It is unnecessary to allege what the law presumes. Bliss, Code Pl. § 175; 1 Boone, Code Pl. § 11. In Bishop v. Middleton, 43 Neb. 10, 61 N. W. 129, it was held that a pleading which alleges facts from which the law presumes another fact sufficiently pleads that other fact. To the same effect is Engle v. Railway Co., 77 Iowa, 661, 37 N. W. 6, and 42 N. W. 512. An admission of the facts stated in the petition would be, of course, an admission of the fact supplied by implication of law. In this state the presumption is that one who has been injured while being transported as a passenger by a common carrier was injured in consequence of the carrier's negligence. Spellman v. Transit Co., 36 Neb. 890, 55 N. W. 270;Railway Co. v. McClellan, 54 Neb. 672, 74 N. W. 1074. Construed in the light of these decisions, the petition plainly shows that defendant's culpable conduct was responsible for the accident in which Morse lost his life.

It is next insisted that the action cannot be maintained because the statute imposing a liability on railroad companies in the absence of negligence is unconstitutional and void. As we have already shown, the petition, by legal implication, charges the defendant with negligence, and therefore states a cause of action entirely independent of the statute. But we do not rest our decision upon that ground alone. The third section of the act of June 22, 1867, is as follows: “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.” Comp. St. 1897, c. 72, art. 1, § 3. The validity of this law has been assumed in many cases decided by this court. Chollette v. Railroad Co., 26 Neb. 159, 41 N. W. 1106; Railroad Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114;Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Railroad Co. v. Landauer, 39 Neb. 803, 58 N. W. 434; Railroad Co. v. Hedge, 44 Neb. 448, 62 N. W. 887; Railroad Co. v. Hague, 48 Neb. 97, 66 N. W. 1000; Railroad Co. v. Hyatt, 48 Neb. 161, 67 N. W. 8; Railroad Co. v. French, 48 Neb. 638, 67 N. W. 472. In Railway Co. v. Porter, 38 Neb. 226, 56 N. W. 808, the section quoted was assailed on the ground that it violated the constitution, but the court expressly held that its enactment was not an unwarranted exertion of legislative power. The point was again raised in Railway Co. v. Chollette, 41 Neb. 578, 59 N. W. 921, and the constitutionality of the act was again distinctly affirmed. Whether these decisions are altogether sound in principle, we will not now stop to inquire. They silence opposition by their mere numerical strength; and, without acknowledging a servile submission to precedent, we feel bound to accept them as conclusive evidence of what the law is.

It is further contended that the petition does not show any liability on the part of the defendant, because the statute above set out was intended to apply only to cases where the party injured survives the injury, and sues in his own behalf for indemnity. This contention cannot be sustained. It was decided in Railway Co. v. Chollette, supra, that a husband might, under this statute, sue for and recover consequential damages which he had...

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7 cases
  • Monaghan v. Equitable Life Ins. Co. of Iowa
    • United States
    • Iowa Supreme Court
    • 28 Septiembre 1918
    ... ... course, an admission of the fact supplied by implication of ... law." Chicago, R. I. & P. R. Co. v. Young, 58 ... Neb. 678 (79 N.W. 556) ...          We have ... ourselves held that, where facts are stated from which a ... presumption of ... ...
  • Monaghan v. Equitable Life Ins. Co. of Iowa
    • United States
    • Iowa Supreme Court
    • 28 Septiembre 1918
    ...of the facts stated in the petition would be, of course, an admission of the fact supplied by implication of law.” Railroad Co. v. Young, 58 Neb. 678, 79 N. W. 556. We have ourselves held that, where facts are stated from which a presumption of negligence arises, an express allegation of ne......
  • Chicago, Rock Island & Pacific Railway Company v. Zernecke
    • United States
    • Nebraska Supreme Court
    • 7 Marzo 1900
    ... ... J. Greene (M. A. Low with ... them) replied, inter alia, as follows: The supreme court said ... in Chicago, R. I. & P. R. Co. v. Young, 79 N. W ... [Nebr.], 558, speaking of decisions of cases (cited by the ... learned counsel for defendant in error): "The validity ... of this ... ...
  • Chi., R. I. & P. Ry. Co. v. Zernecke
    • United States
    • Nebraska Supreme Court
    • 7 Marzo 1900
    ...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 com......
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