Chicago, Saint Paul Minneapolis & Omaha Railway Co. v. Lundstrum

• Decision Date: 08 July 1884
• Citation: 20 N.W. 198,16 Neb. 254
• Parties: THE CHICAGO, SAINT PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY, PLAINTIFF IN ERROR, v. SWAN M. LUNDSTROM, ADMINISTRATOR OF THE ESTATE OF ANDREW P. SWANSON, DECEASED, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 198

16 Neb. 254

THE CHICAGO, SAINT PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY, PLAINTIFF IN ERROR, v. SWAN M. LUNDSTROM, ADMINISTRATOR OF THE ESTATE OF ANDREW P. SWANSON, DECEASED, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 8, 1884

ERROR to the district court for Burt county. The action was brought there by Lundstrom to recover damages on account of the death of his intestate occurring in the manner stated in the opinion. The accident occurred while the deceased was in the employ of the St. Paul & Sioux City Railroad, who had disposed of its road to the defendant below prior to bringing of this action. Trial below before WAKELEY, J. and a jury with verdict and judgment for plaintiff of $ 5,000 and costs. Defendant railroad company brought the cause here on a petition in error.

AFFIRMED.

John D Howe (with whom were T. M. Marquett and John C. Spooner), for plaintiff in error, on first point cited: Whipple v. U P. R. R., 28 Kan. 474. Meyer v. Johnston, 64 Ala. 603. M. V. R. R. v. C., St. L. & N., 58 Miss. 846. Racine v. F. L. & T. Co., 49 Ill. 331. Green's Brice Ultra Vires, 524, 524-5. Sappington v. Railroad, 37 Ark. 23. T. & B. R. R. v. Circuit Judge, 44 Mich. 479. Morametz on Corporations, § 558. Field on Corp., §§ 436, 473, and cases cited. On second point, error in giving instructions, cited: Wood Master and Servant, §§ 435, 451. Lawler v. Railroad, 62 Me. 466. Moseley v. Chamberlain, 18 Wis. 700. Weger v. Penn. R. R., 55 Penn. State, 460. Zeigler v. Day, 123 Mass. 152. 2 Thompson Negligence, 979. Slater v. Jewett, 85 N.Y. 61. Sweeney v. C. P. R. R., 57 Cal. 15. Hughes v. Winona Co., 27 Minn. 137. Brickner v. N. Y. Central, 2 Lans., 506, 49 N.Y. 672. Davis v. Detroit, 20 Mich. 105.

Thurston & Hall and Parrish & Lewis, for defendant in error, cited: Wharton Negligence, 235. 1 Redfield Railways, 552. 2 Thompson Negligence, 1028. Platt v. Eggleston et al., 20 Ohio St. 415. Railroad Co. v. Keary, 3 Ohio St. 201. Berea Stone Co. v. Kraft, 31 Ohio St. 287-292. Whaalan v. The Mad River & Lake Erie R. R. Co., 8 Ohio St. 249-251. Louisville & Nashville R. R. Co. v. Collins, 2 Duvall (Ky.), 114. Railroad Company v. Fort, 17 Wallace, 553. Mann v. Oriental Print Works, 11 R. I., 152. Cooper v. Central Railroad of Iowa 44 Iowa 134. Cook v. Hann. & St. Jo. R. R. Co., 63 Mo. 397. Nashville & Decatur R. R. Co. v. Jones, adm'r., 9 Heisk (Tenn.), 27-8. Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205. Lalor v. C. B. & Q. R. R. Co., 52 Ills, 401. Mullan v. Philadelphia & Southern Mail Steamship Co., 78 Pa. 25-32. Gormly v. Vulcan Iron Works, 61 Mo. 492. K. P. Ry. Co. v. Little, 19 Kan. 267. Malone v. Hathaway, 64 N.Y. 5 Brothers v. Cartter, 52 Mo. 372. Stoddard v. St. Louis, Kansas City & Northern Ry. Co., 65 Mo. 514. Walker v. Bolling, 22 Alabama, 294. K. P. Ry. Co. v. Salmon 14 Kan. 512. Chapman v. Erie Railway Co., 55 New York, 579. Railway Co. v. Lavalley, 36 Ohio St. 221 Brabbits v. Chicago & Northwestern Ry. Co., 38 Wis. 289.

OPINION

COBB, CH. J.

I heard the argument at the bar and have read the exhaustive briefs of counsel on the part of plaintiff in error with great interest, and particularly upon the first point as to the liability of the plaintiff in error upon a cause of action primarily existing against the Sioux City Railroad Company, and whether the allegations of the petition of plaintiff in the court below are sufficient to charge that liability upon the plaintiff in error, and while I admit the force of the argument and that the logic of the briefs is well nigh irrefragable, yet I do not think it possible that the state of our laws has been such as to permit a foreign corporation to own and operate a railroad in this state, contract debts and incur obligations, and whenever it suited the pleasure of its stockholders or officers, sell out all of its property and franchises, its very existence so far as this state is concerned, and leave its property and franchises within our borders freed from such debts and obligations, and in the possession of another foreign corporation lacking only the motive and the opportunity to do the same thing. All of the provisions of law previous to the act of 1881 (Comp. Stat., chap. 72, art. IV.) providing for the sale of railroads within this state, provided for their sale to corporations organized under the laws of this state, or to individuals contemplating organizing under the incorporation laws of this state, and provides that the contracts and agreements made by any such railroad company prior to such transfer, should be binding upon the new owners.

I think it clear that under none of these provisions could the plaintiff in error have legally become the purchaser of the railroad in question. As is well said by counsel in the brief, it was the policy of this state to invite foreign corporations to extend the lines of their roads to our borders and build railroads in our state, but they never were invited to buy out railroads already built, nor permitted to do so by law until the act of 1881, and although the deed of sale of the railroad in question bears date twenty-one days earlier than the taking effect of the statute of 1881, yet it was evidently made in view of the provisions of that act, and of its becoming the law of the land at an early day thereafter, and if the plaintiff in error has the right and franchise to own and operate a railroad within the state of Nebraska to-day, it derives that right from the provision of the act of 1881. Holding its very existence within our state under that act it is bound by its provisions. Among those provisions are the following: "The purchase (purchaser) of any such railroad shall be subject to any and all laws, (liens,) incumbrances, or indebtedness existing against the railroad company from which such road may be so purchased." The word indebtedness is here used in its large and general sense, and not in a technical one. Its primary definition as given by Webster to the word indebted: Placed in debt; being under obligation; held to payment, or requital; beholden.

The plaintiff in error then took the railroad in question charged with the payment of any just claims which were outstanding against the road, or of its former owner as such, including that of defendant in error, or his decedent, if such claim be found just.

The second point made by counsel is upon the instructions given by the court to the jury on the trial. The instruction specially objected to and relied upon as error by plaintiff in error in its brief, was in the following language:

"Ordinarily, an action cannot be maintained by an employee of a person or corporation against the employer for an injury received through the negligence of another employee engaged in the same common service. * * * If you find that Carnes had control and direction of the men who were engaged in cleaning the track, and widening the cut through the snow at the place where the injury was received; that the men were bound by the terms of their service to obey the orders of Carnes, that at the time and under the circumstances it was attended with unusual and peculiar danger and hazard to work in the cut, on account of the approaching train, that Carnes knew this and had the power, authority, and means to cause timely warning to be given to the men of the proximity and approach of the train; that they expected and relied on him to do so; that he failed to do so; and in consequence thereof the deceased was run over and killed, this was negligence for which the railroad company was responsible."

It appears from the bill of exceptions that the decedent of the defendant in error, the deceased, was engaged as a laborer in the employment of the railroad company. He was one of a gang of men attached to a construction train whose business at that season of the year was to clear off the accumulations of snow from the railroad track. One Carnes was the conductor of the train, and boss of the men and of the work in which they were engaged. He had hired most or all of them to work for the company. On the morning of the day of the accident, this gang of men, consisting of fourteen men beside Carnes, the boss and conductor, left Oakland, and proceeded north with the train to Middle Creek Station, or turn out. Here, after placing the train on the side track, the conductor with his gang of men, commenced working back south clearing out the snow from the track. After completing this work through one cut of lesser dimensions, they entered the one where the fatal accident occurred. This is a cut of some four hundred feet in length, from ten to fifteen feet in depth in the center, and gradually sloping to or near a level at each end. After working through this cut at what the witnesses call flanging, and describe as cleaning the snow off of the inner surface of the rails, and having arrived at the south end of the cut, the men were ordered by Carnes, the conductor and boss, to return to the center of the cut, and widen the channel through the snow, which was barely wide enough to permit trains to pass. The sides of this channel were nearly or quite perpendicular, and the snow hard. A portion of the men had reached the center of the cut, and commenced work widening the channel, and some of them had not yet arrived at that point, when some of the latter discovered a train of cars coming around a slight curve which exists at or near the north end of the cut. This proved to be the regular south-bound passenger train, about nine minutes behind time, and running at a speed of twenty-five miles per hour. Eight of the men nearest the south end of the cut, and Carnes, who was also near the south end, succeeded in getting out. Six men, who had got to work near the center of the cut, including defendant in...