Gibbons v. Chi., B. & Q. Ry. Co.
| Decision Date | 20 September 1915 |
| Docket Number | No. 18219.,18219. |
| Citation | 98 Neb. 696,154 N.W. 226 |
| Court | Nebraska Supreme Court |
| Parties | GIBBONS v. CHICAGO, B. & Q. RY. CO. |
If a witness admits that she has told untruths out of court and has before the trial stated some of the matters in controversy entirely different from her testimony in court, it is still for the jury to determine as to her veracity when under oath and as to the credibility of her testimony.
When the plaintiff's testimony is not contradicted or explained by defendant, although the facts testified to by her are equally within the knowledge of the defendant's agents, her testimony, if plain and unequivocal, and consistent with the established facts, should be considered as establishing such facts so testified to by her.
The owner of property is generally admitted to testify as to its value, but when the property has a well-known market value, and the owner has not purchased it, nor any property of a similar character, and does not show any means of knowledge of its value, her testimony upon that point has little weight, and is only admitted in the absence of better evidence. If, however, the property is shown to have some value, and the negligence of the defendant has exposed it to loss under conditions which make it impossible to furnish any other evidence of value, the defendant cannot escape liability if any evidence tending to prove value can be obtained. Under such circumstances the owner's estimate of value must be received, and, being uncontradicted, will support a verdict in her favor.
“Baggage” includes “not only articles of apparel, whether for use or ornament, but also other articles, the use of which is personal to the traveler, and the necessity or convenience of which has arisen from the fact of his journeying.” 5 R. C. L. p. 158.
The question as to what is properly baggage for which the carrier is liable as insurer is a mixed question of law and fact. If the evidence is without substantial conflict, it is ordinarily one of law, but if it depends upon facts from which reasonable men might draw either conclusion, the question is for the jury under proper instructions.
If the property is not properly baggage, the carrier would still be liable if its loss was caused by its own gross negligence, but not if it is caused by accident, or the act of some third party, or even by ordinary negligence of the defendant.
When articles of baggage have no market value, as clothing that has been in the use of the owner and articles of that nature, the value to the owner may be proved; but an ordinary diamond of good quality has a market value, and that is the measure of damage for its loss, in the absence of evidence that it has a different and peculiar value to the owner.
When the articles sued for have a certain market value, and no special value to the owner, it is erroneous to instruct the jury that the measure of damages is “what they were worth to the owner,” and when the evidence as to value is meager, and uncertain as to whether it relates to the market value or some supposed peculiar value to the owner, such instruction is prejudicial, and will require a reversal.
Appeal from District Court, Scotts Bluff County; Hobart, Judge.
Action by Marion May Olson Gibbons against the Chicago, Burlington & Quincy Railway Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.E. E. Whitted, of Denver, Colo., and Wright & Mothershead, of Scotts Bluff, for appellant.
Morrow & Morrow, of Scotts Bluff, for appellee.
The plaintiff bought a ticket at Home City, a station on the Union Pacific near Topeka, Kan., for passage to Grand Island, Neb. At Grand Island she caused her trunk which had been checked as baggage to be transferred to the station of the defendant company, and there bought a ticket for passage to Scotts Bluff, Neb. She requested the defendant's agent to check her trunk to Scotts Bluff, and the agent gave her a check therefor, but on her arrival at Scotts Bluff she was unable to get her trunk, and when she received it, after some delay, she insisted that it had been opened and certain articles taken therefrom. She brought this action in the district court for Scotts Bluff county to recover the value of the articles. There was a verdict and judgment in her favor and defendant has appealed.
The defendant offered no evidence. The case rested upon the testimony of the plaintiff, her husband and sister. The testimony of the plaintiff's husband and sister was very meager, amounting only to confirmation of the plaintiff as to her ownership of a diamond and one or two other particulars testified to by plaintiff, so that the plaintiff's case depends substantially upon her own testimony.
[1] The defendant contends that the plaintiff's admitted untruthfulness so impairs the weight of her testimony as to destroy her evidence. She testifies that she described the diamond to her attorney to enable him to attempt to find it, and that she told him it was a “diamond with a very small chip off of the bottom of it.” She was then asked, “Then it did have a chip off of it, did it not?” and answered:
It was for the jury to determine as to the veracity of this witness when under oath. When this witness testified to matters that were equally within the knowledge of the defendant's agents, and the defendant did not see fit to offer any testimony contradicting or explaining the evidence of the plaintiff, her evidence as to such matters must be taken as establishing the fact so testified to. Of this character was her testimony that the defendant's agent had made a mistake in checking the...
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