Fremont, E. & M. V. R. Co. v. Root
| Decision Date | 16 December 1896 |
| Citation | 69 N.W. 397,49 Neb. 900 |
| Court | Nebraska Supreme Court |
| Parties | FREMONT, E. & M. V. R. CO. v. ROOT. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. An assignment of “Errors of law occurring at the trial and duly excepted to at the time” is sufficient, in a motion for new trial, to raise a question of error in either the admission or exclusion of evidence by the trial court, but is not sufficient, in a petition in error, to present such questions to this court for review. In the latter, the assignment must be specific, and particularly designate the evidence in regard to which it is complained the error occurred.
2. The contract between a railroad company, as a carrier, and a passenger does not contemplate that the passenger shall go into the express car of the train; and if he go there, and while there is injured, if his going or being in such car entered into the injury, as an element thereof, as its proximate cause, or rendering its reception more liable to occur, it would be matter of defense for the carrier; but, if not the proximate cause of the injury, or the risk of such particular injury was not increased by the action of the passenger, then that he assumed the position in the express car voluntarily would be no defense to an action for damages resultant from the injury.
3. Whether the party injured had at the time ceased to be a passenger of the defendant company, held, under the evidence adduced, to be a question of fact for the determination of the jury.
4. Held that, under the allegations of the petition herein, a recovery might be had for any injuries proved to have been sustained by the party plaintiff in the character of a passenger, as a licensee on the company's premises, or as a trespasser thereon.
5. The injuries complained of were claimed to have resulted from direct acts of the conductor. Held, that there was sufficient evidence to sustain a finding that the conductor was at the time acting for the company, and within the line of his duties.
6. Where alleged errors in regard to the giving of instructions are assigned in group in the motion for new trial, and any instruction of the group is determined to be without error, the alleged errors need not be further examined.
7. When it is apparent that an instruction, if read and construed with others of the charge on the same subject or branch of the case, is pertinent, and not calculated to confuse or mislead the jury, its giving was not erroneous.
8. Where the rendition of judgment on a verdict for the plaintiff in an action of contract or tort is delayed during the pendency of a motion for a new trial on behalf of defendant, it is not error to render judgment for the amount of the verdict and interest from its date to the date of rendition of judgment.
9. The evidence held sufficient to support the verdict.
Error to district court, Holt county; Bartow, Judge.
Action by Allen Root against the Fremont, Elkhorn & Missouri Valley Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.
John B. Hawley, Wm. B. Sterling, and B. T. White, for plaintiff in error.
M. F. Harrington and E. W. Adams, for defendant in error.
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, Neb.; “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 in 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 was 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 employés 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 severeshock 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, Neb., 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 & Company Express”:
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 that, “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 $10 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...
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