Chicago, Rock Island & Pacific Railway Company v. Young
| Decision Date | 08 June 1899 |
| Docket Number | 8914 |
| Citation | 79 N.W. 556,58 Neb. 678 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. HALLECK C. YOUNG, ADMINISTRATOR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed.
REVERSED AND REMANDED.
M. A Low, W. F. Evans, R. J. Greene, and L. W. Billingsley, for plaintiff in error.
Strode & Strode and Stewart & Munger, contra.
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, Compiled Statues 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; Burlingim v. Bader, 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 Pleading sec. 175; 1 Boone, Code Pleading sec. 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. Chicago, M. & S. P. R. Co., 77 Iowa 661, 37 N.W. 6. 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. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N.W. 270; Lincoln Street R. 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." (Compiled Statutes 1897, ch. 72, art. 1, sec. 3.) The validity of this law has been assumed in many cases decided by this court. (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. Landauer, 39 Neb. 803, 58 N.W. 434; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N.W. 887; 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.) In Union P. R. 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 Omaha & R. V. R. 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 Omaha & R. V. R. Co. v Chollette, supra, that a husband might, under this statute, sue for and recover consequential damages which he had suffered in consequence of an injury inflicted upon his wife. And in Chicago, B. & Q. R. Co. v. Hague, supra, it was held that an administrator was entitled to maintain an action for the benefit of the widow and next of kin of his intestate who was killed while being carried as a passenger on a railroad train. By the act of 1867, one who has been injured while being transported as a passenger on a railroad train is entitled to recover damages from the carrier, unless the injury was the result of his own gross negligence, or the violation of some express rule or regulation of the company of which he was cognizant. The legislature by this act defined the duty of railroad corporations to their passengers and created a new right of action. The act of 1873 (Complied Statutes 1897, ch. 21). commonly known as "Lord Campbell's Act," also created a new right of action. It gives to the legal representative of a person who has died in consequence of an injury sustained through the wrongful act, neglect, or default of another a right of action in all cases where the injured party might have sued had he survived the injury. Obviously the decisive test of the right of an executor or administrator to sue under the provisions of chapter 21 is this: Would the deceased be entitled to sue with respect to the injury if he had not died in consequence of it? There is nothing whatever to indicate an intention on the part of the legislature to except from the operation of the act...
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