Chicago, Rock Island & Pacific Railway Company v. Zernecke

• Decision Date: 07 March 1900
• Docket Number: 9,149
• Citation: 82 N.W. 26,59 Neb. 689
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BERTHA ZERNECKE, ADMINISTRATRIX OF THE ESTATE OF ERNEST ZERNECKE, DECEASED
• Court: Nebraska Supreme Court

82 N.W. 26

59 Neb. 689

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. BERTHA ZERNECKE, ADMINISTRATRIX OF THE ESTATE OF ERNEST ZERNECKE, DECEASED

No. 9,149

Supreme Court of Nebraska

March 7, 1900

ERROR from the district court of Thayer county. Tried below before HASTINGS, J. Affirmed.

AFFIRMED.

W. F Evans, L. W. Billingsley, R. J. Greene and M. A. Low, for plaintiff, argued that section 3 on page 798 of the Compiled Statutes of 1897 has no application to the case at bar, or to cases of that character, but it refers entirely to actions brought to recover damages resulting from personal injuries where death ensued. It did not, and could not, refer in any way to chapter 15 of the General Statutes of 1873 (which creates or gives a rule of action for damages resulting from the death of a person), as it was passed six years before the act of 1873. During these six years how could an action have been maintained in this state for the death of a person, even though it were caused by carelessness or negligence? In whose name and for whose benefit would it have been brought? In what manner would the proceeds of the judgment have been distributed? Should the proceeds under this statute go to the estate of the deceased or to his widow or next of kin, or to either of them? The statute is silent in reference to all these matters, and they are not provided for in any way.

In construing a statute, we must look to the object in view; and never adopt any interpretation that will defeat the purpose of the statute, if it will admit of any other reasonable construction. See The Emily and The Caroline, 9 Wheat. [U S.], 381; Hagenbuck v. Reed, 3 Neb. 17.

Keeping in view this rule, which obtains in all courts of last resort, how can it be said that the act of 1867 applies to the case at bar? If the act in question refers to injuries resulting in death, why was the act of 1873 necessary? The last act includes by express words death cases, but excludes all others. It is evident that the legislature, in passing the act of 1873, did not intend that it should refer to such cases as are included in the act of 1867.

The two statutes in question are inconsistent with each other:

1. The act of 1867 refers only to railroad companies, while the act of 1873 refers to any persons, company or corporation.

2. The act of 1867 refers only to injuries sustained by passengers while being transported over a railroad; the act of 1873 refers to any person, whether passenger, employe or third person.

3. Under the act of 1867, the railroad company shall be liable for all damages inflicted upon the person of passengers without any limitation as to the amount, but under the act of 1873 the damages shall not exceed the sum of $ 5,000.

4. By a literal construction of the act of 1867, railroad companies are liable in all cases except 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; but under the act of 1873 an action can not be maintained, except when the death of a person shall be caused by the wrongful act, neglect or default of the defendant. See Hegerich v. Keddie, 99 N.Y. 258-267.

How can it be said, in the face of these inconsistencies, that the two statutes refer to or include the same cause of action?

Section 3, article 1, chapter 72, is inimical to the 14th amendment of the constitution of the United States.

Case argued orally for plaintiff by R. J. Greene.

Stewart & Munger, for defendant in error, argued, inter alia: It is the contention of the plaintiff in error, as we understand it, that section 3, article 1, chapter 72, Compiled Statutes, does not apply in an action against a railway company for damages caused by injuries inflicted on the person of a passenger, being transported over his road, where such injuries cause the passenger's death; and that in such cases sections 1 and 2 of chapter 21 of the Compiled Statutes alone govern; and, further, that the statute of 1867 is not contrary to the fourteenth amendment to the federal constitution, which provides: "Nor shall any state deprive any person of life, liberty, or property without due process of law." This question must certainly be regarded as settled in this state. The statute of 1867 has been before this court many times; and has been attacked by so many able counsel, on so many points, that we might well rest by simply referring to the following decisions of this court, wherein they have passed not only on these questions now presented, but also upon almost every objection that could be taken against the statute by any exercise of ingenuity. We refer to Chollette v. Omaha & R. V. R. Co. 26 Neb. 159; Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143; Missouri P. R. Co. v. Baier, 37 Neb. 235; Union P. R. Co. v. Porter, 38 Neb. 226; Chicago, B. & Q. R. Co. v. Landauer, 39 Neb. 803; Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448; Chicago, B. & Q. R. Co. v. Hague, 48 Neb. 97; Chicago, B. & Q. R. Co. v. Hyatt, 48 Neb. 161; Fremont, E. & M. V. R. Co. v. French, 48 Neb. 638.

Case argued orally for defendant in error by Thomas H. Munger.

W. F. Evans, L. W. Billingsley and R. 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 law has been assumed in many cases decided by this court." Whether these decisions were altogether sound in principle, counsel would not now stop to inquire. They silenced opposition by their mere numerical strength; and, without acknowledging a servile submission to precedent, defendant felt bound to accept them as conclusive evidence of what the law was. Counsel respectfully but earnestly submitted that in this the court was clearly in error, as it has never "expressly held" or "distinctly affirmed" that the section in question was valid or constitutional. In all cases in which its validity or constitutionality had been raised this court had assumed, as it did in the Young Case, without an examination or a consideration, that it was valid.

OPINION

NORVAL, C. J.

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 the 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, article 1, chapter 72, Compiled Statutes, 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 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. See Chollette v. Omaha & R. V. R. Co. 26 Neb. 159, 41 N.W. 1106; Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143, 49 N.W. 1114; Missouri P. R. Co. v. Baier, 37 Neb. 235, 55 N.W. 913; Chicago, B. & Q. R. Co. v. Hague, 48 Neb. 97, 66 N.W. 1000; Chicago, B. & Q. R. Co. v. Hyatt, 48 Neb. 161, 67 N.W. 8; Fremont, E. & M. V. R. Co. v. French, 48 Neb. 638, 67 N.W. 472. And the validity of said statute has been expressly decided in Union P. R. Co. v. Porter, 38 Neb. 226, 56 N.W. 808; Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578, 59 N.W. 921; Chicago, R. I. & P. R. Co. v. Young, 58 Neb. 678, 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...