Fremont, Elkhorn & Missouri Valley Railroad Co. v. Root
| Decision Date | 16 December 1896 |
| Docket Number | 6734 |
| Citation | 69 N.W. 397,49 Neb. 900 |
| Parties | FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. ALLEN ROOT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Holt county. Tried below before BARTOW, J.
AFFIRMED.
William B. Sterling and B. T. White, for plaintiff in error.
M. F Harrington and E. W. Adams, contra.
This action was commenced in the district court of Holt county to recover of the defendant company the damages for personal injuries alleged to have been sustained by plaintiff at Emmet, a station on the line of railway of defendant company. The petition contained allegations that the defendant company was a corporation and a common carrier, and, as such operating a line of railroad from Blair to Emmet, Nebraska "that on the 25th day of March, 1886, the plaintiff purchased from the defendant a ticket entitling him to a safe passage over said defendant's road from Blair, in Nebraska, to Emmet, in Holt county, Nebraska, and thereupon, at said Blair, entered and became a passenger on the cars of said defendant on its said railroad; * * * that said plaintiff, on his said ticket, was conveyed by said defendant on its train of cars run on said road from said Blair to said Emmet; that on account of the gross negligence and willful carelessness of said defendant, the said defendant did not stop its train, on board of which this plaintiff was as aforesaid stated, at said Emmet station for a longer time than ten seconds and not a sufficient length of time for said plaintiff to get off said cars safely, at which place said plaintiff intended to leave said cars; that at said Emmet said plaintiff was about to get off, and endeavoring to get off the car of said train on which he then was, in a careful and reasonable manner, and before this plaintiff had got off of said car, said train was, by the employes of defendant operating said train, started up, and plaintiff then carefully and reasonably attempted to get fully back into said car, whereupon plaintiff was seized by the defendant's agent, to-wit, its conductor of said train, and plaintiff was by said defendant's said agent, wrongfully, unlawfully, negligently, and in a rough and violent manner, pulled off said car and thrown down upon the ground a distance of six feet while said train was in motion, at a speed of five miles an hour, by reason whereof said plaintiff was greatly injured, in that he, plaintiff, received a severe shock in his whole system and particularly in his left side, hip, knee, and ankle, which were severely bruised and wounded, and also had two of his front teeth entirely knocked out and lost, and was for a long time confined to his bed, sick, and unable to attend to his business." There were further statements in regard to the permanent character of the alleged injuries, etc. which need no particular or further notice. The company in its answer admitted its existence as a corporation and denied all other allegations of the petition, and pleaded that if the plaintiff had received any injuries they resulted from his own negligence. There was a reply for the plaintiff, and of the issues joined a trial in which the jury returned a verdict favorable to plaintiff, and judgment was subsequently rendered on the verdict. The company prosecuted error proceedings to this court.
It appears that on March 25, 1886, the plaintiff purchased a ticket at Omaha which entitled him to be transported to Blair by the Chicago, St. Paul, Minneapolis & Omaha Railway Company and thence to Emmet by the defendant company, and pursuant to the purpose for which he had purchased the ticket, became a passenger to Blair on a train of the first named company and to Emmet by a train operated on the line of the defendant company. On the same day the plaintiff delivered to the Wells-Fargo Express Company, at Omaha, two "stands" or "hives" of bees, which were billed to Atkinson, a station on the defendant's line of road, beyond and further distant than Emmet, when considered relatively to Blair as the initial point. The bees were consigned to S. Bowers, Emmet, Nebraska, were so marked as to destination and forwarded on the same train as that on which plaintiff was a passenger. Emmet, though styled a station, had no depot; there was no agent for either the express or railway company, and no facilities for receiving express or freight matter, either from trains or for shipment. The following testimony was given by "the general superintendent of the central department of Wells, Fargo & Co.'s express:"
Q. What is the practice of the express company where there is no agent at depots to deliver express goods to?
A. The practice is, if the train stops where we have no agent, and the owner of the goods calls for them, to hand them out to him. If there is no one there to receive them, we leave them at the next office, to be called for by the owner. * * *
Q. What is the express company's practice where the shipper of express goods is on the train with them?
A. The practice is to deliver the goods at the point to which they are addressed, provided the train stops there and the owner of the goods calls for them if the train stops long enough for us to hand the goods out. * * *
Q. What is done with goods that are carried by or left before if the owner is with them, and he does not receive them and they are not delivered?
A. We usually take them to our office next to the destination of the goods, and generally notify the owner at the place the goods are marked to, that we hold them subject to his order.
As we have before stated, there was no agent for the railroad or express company at Emmet; therefore the delivery of the hives of bees shipped by plaintiff was to be governed, so far as we are informed in this case, by the rule stated in the evidence of the superintendent, from which we have just given quotations. The plaintiff testified: "After we had passed O'Neill, Mr. Hoops, the conductor, came into the car, or passed through the car, and wanted to know if I had some express on, and I said I had, and he said I had better go and look after it or take care of it,--words to that effect." This is emphatically denied by the conductor who also states that he did not know, prior to the time of arrival at Emmet, or afterwards, until his attention was called to it in such manner as we shall see hereinafter, that there was any express matter to be delivered to plaintiff, or indeed to any other person, at Emmet. Plaintiff testified that he went into the express car immediately after the talk with the conductor, and while in there the train stopped at Emmet and one hive of bees was taken from the car and placed on the station platform; that some delay was occasioned through the inability of the agent in charge of the express to return to plaintiff the proper amount in change after deducting the express charges on the bees from the amount of a ten-dollar bill proffered by plaintiff in payment; that the conductor became impatient and called from the platform that he could not wait; that at, or prior to this time, the train had been put in motion. Plaintiff states that he was then standing in the doorway inside of the car and thought to get out, but discovered that the part of the train in which he was situated had passed the platform, and that he had concluded to stay in the car; that just then the conductor ran up opposite to the car door, grabbed plaintiff's foot and leg and jerked him from the car, and in his consequent fall to the ground the injuries complained of were sustained. It was of the evidence that the end door of the express car was so closed that plaintiff could not possibly have entered the car while in motion, and further, several witnesses gave testimony to the effect that plaintiff did not go into the express car before the train stopped at Emmet, but stepped from the train, when it stopped, to the platform and walked forward to the express car. The testimony of the news agent, who was on the train the day plaintiff claimed to have been injured, was to the effect that plaintiff came into the baggage car before the train reached Emmet and asked the baggageman for his hives of bees, and was told that perhaps they were in the express car; that plaintiff remained in the baggage car until the train stopped at Emmet, where he alighted from the car. This is corroborated by the baggageman in his testimony. That plaintiff walked along the platform until he reached the side door of the express car, which he entered. While he and the express messenger were transacting the business in regard to the hives of bees, the train was started. The messenger called to the conductor that there was some express matter to be put off and the train was stopped again. After some conversation, in which the plaintiff, the express messenger, and the conductor were all participants, the conductor gave the signal to go ahead and the train was put in motion. The conductor testified that when he had gone a very short distance he discovered the plaintiff sitting in the doorway of the car and apparently about to jump therefrom; that he, the conductor, immediately ran up in front of the door, put up his hands and caught plaintiff under the arms and assisted him to the ground. The testimony of the conductor in regard to how the plaintiff got out of the car, was corroborated by the testimony of four or five other witnesses, including the express messenger, who further states that he got hold of plaintiff's shoulders and assisted in steadying his descent to the ground. The petition in this case was evidently framed upon the theory that the plaintiff, at the time he alleged he was injured, was a passenger of the defendant company, and that it then owed him the duty, which by...
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