Fremont, Elkhorn & Missouri Valley Railroad Company v. Hagblad

• Decision Date: 07 December 1904
• Docket Number: 13,623
• Citation: 101 N.W. 1033,72 Neb. 773
• Parties: FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. AXSEL HAGBLAD. [*]
• Court: Nebraska Supreme Court

101 N.W. 1033

72 Neb. 773

FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. AXSEL HAGBLAD. ^[*]

No. 13,623

Supreme Court of Nebraska

December 7, 1904

ERROR to the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Reversed.

REVERSED.

Benjamin T. White and J. B. Sheean, for plaintiff in error.

M. F Harrington and A. F. Mullen, contra.

LETTON C. AMES and OLDHAM, CC., concur.

OPINION

LETTON, C.

This action was brought by Axsel Hagblad, defendant in error, hereinafter styled the plaintiff, against the Fremont, Elkhorn & Missouri Valley Railroad Company, plaintiff in error, hereinafter styled the defendant. Judgment was rendered for the plaintiff below, and the defendant below brings error to this court. The sole error assigned is that the trial court erred in overruling the defendant's motion for a judgment on the pleading non obstante veredicto. The defendant, by a general demurrer, by seasonable objection to the introduction of evidence upon that ground, by motion for an instruction, and by motion for judgment non obstante veredicto, at every stage of the case challenged the sufficiency of the allegations of the petition to state a cause of action against the defendant. The parts of the petition which are necessary to be set forth, in order to state the question involved, are as follows:

"1. The plaintiff for cause of action alleges that the defendant is a corporation duly organized under the laws of the state of Nebraska, and has been such corporation for ten years last past; that the defendant is a corporation engaged in the railroad business, and for ten years last past it has been a common carrier of passengers for hire upon its railroad, and has owned and operated a line of railroad in the counties of Madison, Antelope and Holt in the state of Nebraska; that Norfolk and Meadow Grove are stations upon the defendant's line of railroad in Madison county where it receives and delivers passengers on and from its trains, and that the defendant on the 28th day of December, 1902, was a common carrier carrying passengers from Norfolk to Meadow Grove, and that the station at Norfolk where such passengers are received is commonly known as Norfolk Junction.

"2. That on the 28th day of December, 1902, the plaintiff purchased from the defendant at Norfolk, Nebraska, a ticket entitling him to a safe passage on the defendant's train from Norfolk to Meadow Grove, and insuring him against injury while a passenger on said train and while a passenger on the defendant's premises at Norfolk; that while plaintiff was standing on the defendant's station platform at Norfolk on the evening of said day, and after he had purchased and paid the defendant for said ticket, and while he was a passenger on the defendant's premises, and while he was waiting for the arrival of the defendant's train which was to carry him from Norfolk to Meadow Grove, he was struck by an engine and cars run and operated upon the defendant's railroad track at Norfolk, and which train was under the direction and with the knowledge, approval and consent of the defendant. That by being struck by said engine and said cars the plaintiff was thrown down, mangled, bruised and injured, and sustained the following injuries."

It will be observed that the petition does not allege that any act was negligently done. If the action had been brought against an individual for damages occasioned by his negligence which resulted in the injuries complained of, it would be essential to allege that the injuries were occasioned by the negligence of the defendant, either by setting forth facts which would constitute negligence as a matter of law, or by pleading generally that the defendant was negligent in performing or omitting to perform the acts complained of as constituting negligence. Omaha & R. V. R. Co. v. Wright, 49 Neb. 456, 68 N.W. 618. The allegations of the petition under consideration do not set forth that the act by which the plaintiff was injured was done negligently, and no fact is alleged which constitutes negligence as a matter of law under the common law, nor by statute unless the plaintiff was one of a class embraced under the provisions of section 3, article I, chapter 72, Compiled Statutes, 1903 (Annotated Statutes, 10039), relating to injuries to persons while being transported over railroads in this state. Since the petition was assailed at every stage in the progress of the cause, the pleader will be presumed to have stated his case as fairly to himself as the facts will warrant, and the familiar rule applied that the allegations in the petition and all presumptions arising therefrom will be construed against the pleader, and no presumptions in his favor indulged in. Having these rules in mind, therefore, it will be observed that the only allegations of the petition which show the manner in which the plaintiff was injured are that, while plaintiff was standing on defendant's station platform at Norfolk on the evening of December 28, 1902, he was struck by an engine and cars run and operated upon the defendant's railroad track, which train was run under the direction and with the knowledge, approval and consent of the defendant. That, by being struck by said engine and cars, the plaintiff was injured. Taking these allegations alone, without the aid of any presumptions, they appear to be somewhat inconsistent. The plaintiff, while standing on the platform, was struck by the engine and cars operated upon the track. The plaintiff stood presumably upon a safe and properly constructed platform, the engine and cars were presumably properly constructed and properly operated, and the track was presumably in good condition for the purpose of its construction. If we accept these facts as true, then, unless the plaintiff was so situated at the time of the accident that, though he was standing upon the platform, his body projected over the track in such manner that properly constructed and operated engine and cars might strike him, no injury could result. This being the case, the inference must be drawn that, presuming that the defendant was operating its trains with due care and caution, the plaintiff placed himself in a position that common knowledge would show to be one of danger. We conclude therefore that the petition fails to disclose any facts which constitute negligence on the part of the defendant as a matter of law irrespective of the statute, and does not state a cause of action if based upon a common law liability of the defendant.

The plaintiff contends that the petition states a good cause of action upon three grounds: First, it states a breach of contract to safely convey the plaintiff from the point where he purchased the ticket to the point of destination; second, it states a cause of action under the statute hereinbefore alluded to; third, it states a cause of action on the ground of negligence, by stating facts which as a matter of law constitute negligence on the part of the defendant.

As to the first contention, we think it clear that this petition is not based upon contract. No promise and no consideration therefor have been alleged. The petition alleges that the plaintiff purchased a ticket. While it is true that a railroad ticket is evidence of a contract between the carrier and the purchaser thereof, still the plea that the plaintiff purchased a ticket for a passage from Norfolk to Meadow Grove, without alleging that the defendant agreed to carry him between these points in consideration of the sum paid, and alleging further a breach of the contract, does not set forth an action ex contractu. 15 Ency. Pl. & Pr., p. 1125, and notes.

"There is a class of cases arising out of contract, where, by reason of the contract, the law raises a duty, for the breach of which duty an action on the case may be maintained; and in such cases the contract, being the basis and gravamen of the suit, must be alleged and proved. * * * But when the gist of the action is a breach of duty and not of contract, and the contract is not alleged as the cause of action, and when, from the facts alleged, the law raises the duty by reason of the calling of the defendant--as in case of innkeepers and common carriers--and the breach of duty is solely counted upon, the rules applying to actions ex delicto determine the rights of the parties." Frink v. Potter, 17 Ill. 406. See also Wright v. Geer, 6 Vt. 151; Bank of Orange v. Brown, 3 Wend. (N.Y.) 158; M'Call v. Forsyth, 4 Watts & Serg. 179.

We conclude therefore that the gist of this action under the allegations of the petition is a breach of duty arising from the obligations imposed by law upon common carriers, and that it is not an action upon the contract of carriage.

We have already considered the third ground upon which the plaintiff asserts the petition is sufficient, and decided that his position as to this is unsound. There remains, however, to be considered the contention that the petition states a cause of action under section 3, article I, chapter 72, Compiled Statutes, 1903 (Annotated Statutes, 10039), and this presents an important point for consideration. Section 3 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 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 plaintiff contends that under the allegations of the petition he was a passenger and was injured while being transported over the defendant's railroad, and that since this fact appears upon the face of the petition the liability of...