Gibbons v. Chicago, Burlington & Quincy Railroad Company

• Citation: 154 N.W. 226,98 Neb. 696
• Decision Date: 20 September 1915
• Docket Number: 18219
• Parties: MARION MAY OLSON GIBBONS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT
• Court: Supreme Court of Nebraska

154 N.W. 226

98 Neb. 696

MARION MAY OLSON GIBBONS, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT

No. 18219

Supreme Court of Nebraska

September 20, 1915

APPEAL from the district court for Scott's Bluff county: RALPH W. HOBART, JUDGE. Reversed.

REVERSED.

E. E Whitted and Wright & Mothersead, for appellant.

Morrow & Morrow, contra.

SEDGWICK J. HAMER, J., not sitting.

OPINION

SEDGWICK, J.

The plaintiff bought a ticket at Home City, a station on the Union Pacific, near Topeka, Kansas, for passage to Grand Island, Nebraska. 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 Scottsbluff, Nebraska. She requested the defendant's agent to check her trunk to Scottsbluff, and the agent gave her a check therefor; but, on her arrival at Scottsbluff, 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 Scott's 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.

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, "No, sir; it did not. * * * Q. Is that the first time you ever lied about that diamond? A. No, sir. Q. When did you first commence lying about it? A. Well, a young man asked me, a while after my husband died, what I did with his diamond, and I says, 'I gave it away.' Q. That is when you first began lying about it? A. Yes, sir; because there were too many questions asked me about it. Q. And you kept that up until you met Mr. Morrow? A. I did, if questions came up. Q. And the only time you ever told the truth about it was when you were suing the railroad company about it? A. No, sir. Q. When did you begin telling the truth about it? A. Oh, I have told the truth about it lots of times. Q. About half and half, you think? A. No, sir. Q. You think the truth is a little bit in your favor, do you? A. Yes, sir."

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 trunk, and that the check given her called for another trunk altogether, and that her trunk had been miscarried and did not arrive at Scottsbluff until several days after it should have arrived, and also her testimony as to the condition of the trunk and its fastenings when it was delivered to her at Scottsbluff. She testified that when she delivered the trunk to the defendant at Grand Island it was securely "roped twice around endways and twice around the center, and when it arrived in Scottsbluff it was once around the trunk endways and three times around the middle;" also, "one corner on the bottom of the trunk was broken off; the bottom board was split off about half way across, and it had been unroped." This and similar testimony as to the condition of the trunk was not denied by the defendant. The negligence of the defendant which exposed plaintiff's property to danger of loss, not having been denied by defendant when the facts were peculiarly within the knowledge of its agents, must be regarded as fully established. 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. Her testimony therefore, as to its value could only be 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...