Chicago, Burlington & Quincy Railroad Company v. Clark
| Citation | 42 N.W. 703,26 Neb. 645 |
| Parties | THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, PLAINTIFF IN ERROR, v. TERRANCE CLARK, DEFENDANT IN ERROR. SAME v. CHARLES HENKLE. SAME v. WILLIAM M. DUNKLE. SAME v. CHARLES THOMAS. SAME v. THOMAS F. JORDAN. SAME v. HEINRICH STANLEY |
| Decision Date | 31 May 1889 |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Lancaster county. Tried below before FIELD, J.
REVERSED AND REMANDED.
Marquett Deweese & Hall, for plaintiff in error, cited: Maxwell's Pleading and Practice, 167; 2 Shearman & Redfield on Negligence, 478; Grand Rapids & Ind. R. R. Co. v Huntley, 38 Mich. 537; Union Pacific Ry. Co. v Young, 8 Kas. 658; Sexton v. Cook County, 114 Ill. 147; Vigeant v. Scully, 20 Ill.App. 437; Lawson, Expert and Opinion Evidence, 86; Fairbank v. Hughson, 58 Cal. 314; Beach on Contributory Negligence, 7; Railroad Co. v. Jones, 95 U.S. 439.
Pound & Burr, G. M. Lambertson, and Sawyer & Snell, for defendants in error, cited: Frick v. St. Louis, K. C. & N. Ry. Co., 75 Mo. 595; Bohan v. The Milwaukee, Lake Shore & Western R. R. Co., 58 Wis. 30; Worthen v. Grand Trunk Ry. Co., 125 Mass. 99; Patterson, Railway Accident Law, 424; Van Horn v. B. C. R. & N. Ry. Co., 59 Iowa 33; Hoppe, Adm'r, v. Chicago, Milwaukee & St. Paul Ry. Co., 61 Wis. 357; Bowen v. N. Y. Cent. R. R. Co., 18 N.Y. 408; C. & A. R. R. Co. v. Kellam, 92 Ill. 245; Brown v. N. Y. Cent. R. R. Co., 34 N.Y. 404.
These several causes were instituted in the district court of Lancaster county against plaintiff in error. The issues were formed separately, but when they were called for trial they were consolidated and tried as one case, the jury returning separate verdicts in each case, which were all in favor of defendants in error, and assessing to each the damages found due them. A motion for a new trial was filed, and upon the same being overruled, judgment was rendered. The causes as consolidated are now brought to this court by proceedings in error. The issues formed in the district court were substantially the same in all the cases, and may be briefly stated as follows:
The actions were all against the Nebraska & Colorado R. R. Co. and John Fitzgerald, and the Chicago, Burlington & Quincy Railroad Co., as defendants. It was alleged in the petition that the Nebraska & Colorado Railroad Co. was a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska, and that the defendant, John Fitzgerald, was the railroad contractor, and a resident and citizen of the state of Nebraska; and that the Chicago, Burlington & Quincy Railroad Co. was a corporation duly organized and existing under the laws of the state of Illinois; that said defendants, were, on the 19th day of October, 1886, in the course of the construction and completion of a railroad, and about two miles from the station of Deweese, in this state; that the plaintiff was employed by the defendant Fitzgerald at an agreed price of $ 1.75 per day in laying track from the terminus mentioned, into the station of Laurence; that the said defendants were possessed of the locomotive, tender, and train of cars thereto attached of about sixteen in number; and at the time of the injuries complained of, the railroad company referred to had in their employ, and in charge and control of its train of cars, a conductor, engineer, fireman, and two brakemen, who were running the train from about one mile from the said station of Laurence, to the said station of Deweese, at a high and dangerous rate of speed, and at not less than thirty miles per hour. Some of the cars were flat, some of them box cars, and one water car, one engine and tender, and the train was carelessly and negligently made up for that trip by said agents, servants, and employes, of the said railroad company by running the engine backwards and by placing the said engine in the middle of the train, with about ten cars in front of said engine, and about six cars in the rear thereof, and with a box car in front, towards the said station of Deweese, with no cow-catcher on in front of the train; and while carelessly and negligently running the train at the great rate of speed mentioned, by the wrongful act, neglect, and fault, of defendants while they were engaged in managing and conducting the business of the said defendant, and without fault on the part of the plaintiff, the train ran into a herd of cattle near a high bridge, and the cars and all thereon in front of the engine were thrown down upon the ground below, a distance of about twenty feet, by reason of which the plaintiff was greatly injured, etc.
The defendants in the action filed their motion for a more specific statement of the cause of action, in the following particulars:
This motion was overruled.
The cause being presented on error by the Chicago, Burlington & Quincy railroad company alone against the several plaintiffs in the court below, the first assignment of error is the ruling of the district court upon the motion referred to. By the petition the defendants in the action were jointly charged with the commission of the grievances referred to therein, and so far as appears upon the face of said petition, each was equally and jointly liable. It was evidently the purpose of the pleader to so charge. Knowing that the facts referred to in the motion were within the special knowledge and information of the defendants, the issues could be formed by answer, and under the provisions of section 429 of the Civil Code, judgment might be rendered against either defendant found liable, if any liability existed. After the motion for a more specific statement of the petition was overruled, the Nebraska & Colorado Railroad Company filed its separate answer, denying that it was the owner of the locomotive and train of cars referred to, or had any control or management over it. It also denied that the train men were in its employ or under its control, and alleged that no cause of action was stated against it. The Chicago, Burlington & Quincy Railroad Company answered, alleging that it had leased the lines of the Nebraska & Colorado Railroad Company, and completed the construction of the same through a contractor, John Fitzgerald, the other defendant; that the line referred to in the petition was in process of construction, and the train of cars, and employes operating the same, were at the time of the accident complained of under the control and management of and subject to the orders of the said contractor, Fitzgerald, and alleging that whatever injuries the plaintiff received on account of the accident referred to, were received and incurred by them on account of their own negligence and carelessness, and not by reason of any fault of the said answering defendant; and alleging further that the petition set up no cause of action as against it. Fitzgerald filed his separate answer, admitting that he was the railroad contractor, and that the several plaintiffs were in his employ at the time of their injuries. He also admitted the making up of...
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