Chollette v. Omaha & R. V. R. Co.

• Decision Date: 04 April 1889
• Citation: 26 Neb. 159,41 N.W. 1106
• Parties: CHOLLETTE v. OMAHA & R. V. R. CO.
• Court: Nebraska Supreme Court

26 Neb. 159

41 N.W. 1106

CHOLLETTE

v.OMAHA & R. V. R. CO.

Supreme Court of Nebraska.

April 4, 1889.

Syllabus by the Court.

1. A railroad company, organized and incorporated under the laws of this state, cannot absolve itself from the performance of duties imposed upon it by law, or relieve itself from liability for the wrongful acts or omissions of duty of persons operating its road, by transferring its corporate powers to them, or permitting them to operate its road as owners of its capital stock. To allow it do so would be contrary to the public policy of the state, as expressed in its constitution and laws with reference to railroad companies. ¹

2. The original obligation of a railroad company to the public cannot be discharged by a transfer of its franchises to another company, except by legislative enactment consenting to and authorizing such transfer, with an exemption granted to such company relieving it from liability. Legislative consent to the transfer is not alone sufficient; there must be a release from the obligations of the company to the public.¹

3. Plaintiff applied to an agent in the ticket-office at the station at W., on defendant's road, for a ticket to E., on the U. P. R. R., a number of miles east of the eastern terminus of defendant's road, which was on the line of the U. P. R. R., and by such agent was furnished a single local ticket from W. to E. By direction of the agents in charge of the train she took her seat in the car, in which she was carried to the junction of the two roads and on to E., without change. At E. plaintiff was injured while alighting from the train, the injury being caused by the alleged negligence of those in charge of the train. Held, that in such case the defendant would be liable, under the provisions of section 3, art. 1, c. 72, Comp. St., for the damages sustained.

Error to district court, Saunders county; POST, Judge.Bell & Sornborger, for plaintiff in error.

J. M. Thurston, W. R. Kelly, J. S. Shropshire, and W. W. Cotton, for defendant in error.

REESE, C. J.

This action was instituted in the district court of Saunders county by plaintiff against defendant, and was for damages alleged to have resulted from a personal injury received by plaintiff while a passenger on defendant's road, and in its cars, through the negligence of defendant's agents in starting the train before plaintiff could alight from the car at Elkhorn, and by which she was thrown violently down, and seriously injured. It was alleged in the petition that defendant was a railroad corporation, duly organized and incorporated under the laws of the state of Nebraska, and was on the date of the injury the owner of, and operating, a line of railroad as a common carrier of passengers, running from and through the city of Wahoo, in Saunders county, to and through the village of Elkhorn, in Douglas county; that on the 31st day of December, 1886, in consideration of the payment by plaintiff to defendant of the required fare for such service, the defendant received her as a passenger on its road, to be transported from Wahoo to Elkhorn; that, in consideration of the fare paid by plaintiff, defendant promised and undertook to transport her as aforesaid, and to furnish suitable means, and allow sufficient time for her to enter and alight from its cars, but that by the negligence of defendant in failing and refusing to allow her sufficient time to alight from its cars, at Elkhorn, and by negligently starting the car on which she was then riding before she had a reasonable time to alight therefrom, she was thrown down, and the injury received, to her damage, etc. For answer defendant admitted that it was a railroad corporation, duly organized and incorporated under the laws of this state, but denied that it was at the date of the happening of the events described in plaintiff's petition operating a line of road, as a common carrier, from Wahoo to Elkhorn; but alleged that it was the owner of a line of road from Valley, in the county of Douglas, to and through the city of Wahoo, in Saunders county, and that the village of Elkhorn was not in or on any part of its line of road. For a second defense it was averred that defendant was a railroad corporation, organized as aforesaid, but denied that it was operating the road from Wahoo to Elkhorn, said last-named point being situated many miles eastward from the terminus of defendant's road, and upon the Union Pacific Railroad. It was further denied that defendant was operating its line of railroad, and it was alleged that defendant's line of road was operated exclusively by the Union Pacific Railway Company, a corporation organized under and by virtue of the laws of the United States, and that said Union Pacific Railway Company was operating defendant's line of railroad by reason and because of its ownership of all the capital stock of defendant; and that by reason of such ownership the Union Pacific Railway Company, by its agents and servants, had the exclusive possession and control of all of the property of defendant, and was in exclusive possession and control of all the stations and trains operated upon and along the line of defendant's road; and that at the time mentioned in the petition defendant had no agent or servant in Saunders or Douglas county; and that if plaintiff purchased a ticket, as alleged in her petition, such purchase was made of and the ticket obtained from the Union Pacific Railway Company, and not from defendant, or any of its agents or servants. The third defense set up in the answer consisted of a denial of the reception of plaintiff by defendant as a passenger, the sale of a ticket to her, or receipt of fare, or that defendant was under any obligations to transport plaintiff. All carelessness or negligence on its part was also denied, as well as all injury to plaintiff. It was also alleged that if any such injuries were received or sustained, they were received while plaintiff was a passenger upon the cars of the Union Pacific Railway, and not of defendant; and that any contract made for the purchase of a ticket from any person or agent at the time alleged was made with and purchased from the Union Pacific Railway Company, which had charge of the train. It is also alleged that whatever injuries were received were by reason of the contributory negligence of plaintiff.

To this answer plaintiff filed her reply, admitting that the village of Elkhorn was not situated on the defendant's line of railroad, but was several miles eastward from its eastern terminus, on the line of the Union Pacific Railroad. The allegations of the answer concerning the use and occupation of defendant's road by the Union Pacific Railway Company were denied, and it was alleged that the Union Pacific Railway Company had no power or authority to become the stockholder of defendant; and that it did not operate the line of road as alleged in the answer; and that the agents and servants referred to in the petition and answer were the agents and servants of defendant. It was denied that plaintiff purchased her ticket from, or made any contract for her transportation with, the Union Pacific Railway Company, but that she applied to the usual and well-known office of defendant, situated on its line of road, and on its right of way, and that in response to such application to the persons in charge she was sold a ticket for continuous passage from Wahoo to Elkhorn, that she boarded defendant's train at Wahoo, and was carried through to Elkhorn without change of cars, where she received the injury through the negligence of defendant, as alleged in her petition. All other allegations of the answer were denied. A jury was impaneled, when plaintiff called and examined certain witnesses, tending to prove the purchase of a ticket at Wahoo, in Saunders county, and on the line of the defendant's road, to Elkhorn, in Douglas county, on the line of the Union Pacific Railroad; that she went aboard the train at Wahoo, and was transported without change of cars from there to Elkhorn, where the alleged injury occurred. Among other witnesses called was the station agent at Wahoo, who testified that he was the agent for the Union Pacific Railway Company, hired by the superintendent of the said company, who was also the superintendent of the Omaha & Republican Valley Railroad Company; that the Omaha & Republican Valley Railroad, upon the right of way of which the depot was located in which he was employed, was operated as a branch of the Union Pacific Railroad. That the ticket offered in evidence and attached to the record was the character of ticket sold at the time plaintiff's ticket was purchased, and was known as a local book ticket, which was used as a substitute for card tickets, commonly used on railway lines for local travel; that the reason why the ticket of the form given was used was that card tickets were used only between points where there was considerable travel; that between points where there was but little demand for tickets the local book ticket was used in its stead. This ticket was in the following form:

+---------------------------------------------------------------------+
                ¦UNION PACIFIC RAILWAY                   ¦LOCAL.                      ¦
                +----------------------------------------+----------------------------¦
                ¦One First Class Passage.                ¦UNION PACIFIC RY.           ¦
                +----------------------------------------+----------------------------¦
                ¦Wahoo                                   ¦Wahoo                       ¦
                +----------------------------------------+----------------------------¦
                ¦To Elkhorn ______                       ¦To Elkhorn ______           ¦
                +----------------------------------------+----------------------------¦
                ¦Via ______                              ¦Via ______                  ¦
                +----------------------------------------+----------------------------¦
                ¦When officially stamped.                ¦This check is not good

...