Chicago, Burlington & Quincy Railroad Co. v. Hyatt, 6462

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL, J.
Citation67 N.W. 8,48 Neb. 161
Docket Number6462
Decision Date21 April 1896

67 N.W. 8

48 Neb. 161



No. 6462

Supreme Court of Nebraska

April 21, 1896

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.


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

C. M. Parker and M. B. Reese, contra.


[48 Neb. 162] 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:

"1st. How long did the train stop at the station at Tamora at the time complained of?

"Answer. One and a half minutes.

"2d. How fast was the train running at the time the plaintiff got off the same?

[48 Neb. 163] "Answer. About five miles an hour.

"3d. 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.

"4th. 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.



Judgment was rendered for the plaintiff upon the general verdict, from which the railroad company 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 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. Central City Bank, 44 Neb. 402, 62 N.W. 872; School District 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, [48 Neb. 164] 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 Hon. 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 true the statute specifies the absence of the trial judge from the district as a ground for the clerk allowing a bill, yet the showing in this record, that Judge Tibbets was absent from Lancaster county, the county in which the cause was tried, was sufficient to confer authority upon the clerk to act. This court will take judicial notice of the boundaries of the several judicial districts in this state, and in that way we know that during the entire pendency of this cause in the court below, and since, Lancaster county alone comprised the third judicial district. Judge Tibbets being absent from such county, he was likewise absent from said district, and therefore the clerk possessed the power to settle, allow, and sign this bill of exceptions.

On the 23d day of March, 1892, the plaintiff, then forty-six years of age and by occupation a dressmaker, after purchasing a ticket from Lincoln to Tamora, boarded a passenger train on defendant's road in Lincoln, taking a [48 Neb. 165] seat near the center of the second day coach. After the train started her ticket was surrendered to the conductor and a check was given her, which was taken up between Seward and Tamora, when she was informed by the brakeman, upon her inquiry, that the next stop was at Tamora, her place of destination, and the station was soon thereafter called by the brakeman. The train arrived at Tamora about 1:45 in the afternoon, making its usual stop, and the plaintiff immediately went out upon the platform of the car in which she was riding for the purpose of getting off, but did not then do so, claiming that the coach had not reached the station platform, and that the ground in front of her was covered with running water, which, together with the height of the car step above the ground, prevented her from alighting. Plaintiff thereupon, at the suggestion of a passenger, passed rapidly through the first day coach, the car immediately in front of the one in which she rode, in order that she might alight on the station platform. By the time she reached the center of the car she ascertained...

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