Grand Island & W. C. R. Co. v. Swinbank

Decision Date05 May 1897
Citation71 N.W. 48,51 Neb. 521
CourtNebraska Supreme Court
PartiesGRAND ISLAND & W. C. R. CO. v. SWINBANK ET AL.

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Errors in the admission and rejection of evidence cannot be reviewed unless the particular

rulings complained of are pointed out in the petition in error.

2. Evidence held sufficient to warrant a finding that there had been an absolute assignment of a cause of action to the plaintiff.

3. Sess. Laws 1877, p. 60, purporting to amend section 2 of the act relating to the liability of railroad companies for live stock injured where no lawful fence has been constructed, is in conflict with the constitution and inoperative, because it did not repeal the section amended. City of South Omaha v. Taxpayers' League, 60 N. W. 957, 42 Neb. 671, followed.

4. Therefore the notice provided for by the original section is incompetent evidence for the purpose of establishing the value of live stock killed or injured.

5. Permitting a defendant in default to file an answer is a matter resting largely in the discretion of the trial court, and a judgment will not be reversed because the defendant was permitted to answer out of time, unless the record affirmatively discloses an abuse of discretion.

6. That part of the statute relating to the liability of railway companies for live stock injured which gives the owner of live stock double the value of his property is void. Railroad Co. v. Baty, 6 Neb. 37, reaffirmed.

Error to district court, Dawes county; Kinkaid, Judge.

Action by Samuel Swinbank and another against the Grand Island & Wyoming Central Railroad Company. There was a judgment for plaintiffs for a less sum than that demanded. Defendant brings error, and plaintiffs assign cross errors. Affirmed on condition of remittitur.

T. M. Marquett, J. W. Deweese, F. E. Bishop, and A. W. Crites, for plaintiff in error.

Allen G. Fisher and Addison V. Harris, for defendants in error.

IRVINE, C.

Samuel Swinbank and William Swinbank, partners as Swinbank Bros., brought this action against the Grand Island & Wyoming Central Railroad Company to recover damages for live stock killed by the trains of the railroad company at points where the tracks remained unfenced, in violation of the statute. They recovered judgment for $515, and both parties prosecute error.

We will consider in the first place the petition in error of the defendant railroad company. The petition is in four counts,--the first alleging the killing of four horses belonging to plaintiffs; the second alleging the killing of a mare belonging to one Collins, and the assignment of the cause of action to plaintiffs; the third alleging the killing of a heifer belonging to Rosenberg Bros., and the assignment of the cause of action to plaintiffs; the fourth alleging the killing of a cow belonging to plaintiffs. The matters complained of in the brief, and to which the argument is entirely directed, may best be considered in the order in which they are sated in a general résumé at the close of the brief.

1. Error in admitting in evidence certain notices and affidavits of loss made and served upon the railroad company, in accordance with the provisions of section 2, c. 72, Comp. St., relating to the liability of railway companies for stock killed when the track is not properly fenced. We cannot consider this question, because the admission of the evidence is not assigned in the petition in error.

2. That the assignment of the second and third causes of action to the plaintiffs is not established by the evidence, and that as to those counts the plaintiffs are not the real parties in interest. In support of this contention, the defendant invokes the rule established in Hoagland v. Van Etten, 22 Neb. 681, 35 N. W. 869, to the effect that a mere assignee, having no interest in the result, but who obtains an assignment upon a promise to pay the assignor the amount he may derive from the action, is not the real party in interest, under section 29 of the Code of Civil Procedure, and cannot maintain an action. We find, however, in the evidence, sufficient to warrant the jury in finding that in each case there was an absolute assignment, conveying a beneficial interest to the plaintiffs. As to the third count, this evidence is quite distinct and satisfactory. As to the second, it is by no means conclusive, but it would be without profit to set out here all the evidence bearing on the issue. Suffice it to say that there was evidence tending to prove that the conditions of the assignment were that, in case of recovery, plaintiffs were to pay the owner $125. If no recovery should be had, they were to pay, in any event, the value of the horse. The bona fides of this transaction and the character of the assignment, as to whether or not it was an actual and absolute sale, were submitted to the jury by appropriate instructions, not complained of in the briefs, and the jury resolved the question in favor of the plaintiffs.

3. That the damages assessed on the third and fourth causes of action are unsupported by competent evidence of value. As to the fourth cause of action, there is no assignment relating thereto in the petition in error, and no general assignment covering the question. As to the third cause of action, there is an appropriate assignment, and it is well taken. We find no evidence in the record as to the value of the cow described in the third count, except the notice of loss and affidavit served on the company. As before stated, these notices and affidavits were made and served in compliance with section 2, c. 72, Comp. St. By the first section of that act, it is made the duty of railroad companies, under certain limitations, to provide fences and cattle guards, and they are made liable for all damages inflicted by agents, engines, or trains running upon the track, upon cattle, horses, sheep, or hogs thereon, where the statute is not complied...

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