Missouri Pacific Railway Company v. Baier
| Decision Date | 29 June 1893 |
| Docket Number | 5271 |
| Citation | 55 N.W. 913,37 Neb. 235 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY v. OSWALD BAIER, ADMINISTRATOR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Otoe county. Tried below before CHAPMAN, J.
AFFIRMED.
B. P Waggener and C. W. Seymour, for plaintiff in error.
John C Watson, E. H. Wooley, and H. D. Travis, contra.
The defendant in error filed his petition in the district court of Otoe county, Nebraska, alleging, in substance, that on the 26th day of December, 1889, the Missouri Pacific Railway Company received one Katharine Baier as a passenger on its said railroad from Nehawka to Lincoln; that at Weeping Water, to continue her journey, it was necessary for her to change from one of defendant's cars to another and said railway company was thereby bound to furnish her suitable means, time, and instructions to make said change; that it failed and neglected to do its duty in these matters, and carelessly, negligently, and wrongfully performed its duty towards her in making said change; that the defendant furnished no platform for that purpose; that the ground was three or four feet below the lowest step on said car, and that the defendant then and there gave her wrong instructions about making said change, and did not give her time to make said change; in consequence whereof, when the said train stopped at the defendant's water-tank before reaching the depot at Weeping Water, the conductor of said train having wrongfully, carelessly, and negligently instructed her to get off said train, she did get off at said place, and the conductor finding that he had made a mistake immediately instructed her to get on again, and further instructed her to get off of said train when the next stop should be made; that afterwards said train of cars pulled by and at some distance beyond said station at Weeping Water, and the said Katharine Baier, in accordance with the instructions given her by said conductor upon the stoppage of said train of cars, attempted to get off, but by reason of said train making a sudden jerk while she was in the act of leaving said train to change to the other which should take her to Lincoln, she was without fault on her part seriously injured, from the effects of which injury on the 3d day of January, 1890, she died; that she left eight minor children, naming them, which were her only children and next of kin, and that they were dependent upon her for a mother's care and attention, and had been otherwise injured by the death of said Katharine Baier to the amount of $ 5,000.
The plaintiff in error filed a general denial, and further pleaded the defense of contributory negligence of Katharine Baier, to which answer the defendant in error filed a reply in denial.
Upon a trial of the issues had to a jury a verdict was rendered for the full amount prayed, and a motion for a new trial being overruled, judgment was entered on the verdict; to reverse which plaintiff in error filed its petition in this court.
On the trial of the case in the district court the plaintiff in error requested the court to give forty-nine instructions, and asked that the jury be required to answer twenty-nine interrogatories submitted for that purpose. The petition in error in this court assigns seventy-nine alleged errors. In view of these facts no attempt will be made to consider seriatim the several matters complained of in detail, or in the order in which they occur.
Upon the trial there was offered in evidence and admitted over the objection of the defendant, the railroad company, a duly authenticated copy of the letters of administration upon the estate of Katharine Baier, issued in the usual form by the county court of Cass county, Nebraska, to Oswald Baier. It is insisted that the admission in evidence of this copy was error, for that it did not fall within the description of documents of which copies may be introduced under the provisions of section 408 of the Code of Civil Procedure. This section reads as follows: "Duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original records or papers so filed." The certificate of the county judge by whom was issued the aforesaid letters of administration, and by whom a copy thereof under his seal was authenticated, recited that the said copy was a true and correct one of the letters of administration of the estate of Katharine Baier, deceased, as appeared from the original on file in said judge's office. This was sufficient to entitle said copy to consideration under the strictest construction of said section.
In argument it is insisted that it was error to permit the following question to be answered by the witness Johnson. His testimony had reference to the accident on account of which this suit was brought; following which evidence was this question and answer:
Q. Has there been any change since that time that you know of in making up trains?
Objected to, as incompetent, irrelevant, and immaterial and not a proper issue in this case. Overruled and exception.
A. I don't know whether there is or not of my personal observation. I heard there had been a change.
There might be imagined circumstances under which a question of this character, followed by evidence of a certain kind, would be prejudicial to the railroad company. Upon what ground the existence of such prejudice is founded in this case is not apparent, for the argument of the plaintiff in error is simply that the only effect of this evidence was to prejudice the defendant. We can observe no such necessary or even natural result of that kind which could arise upon either the question or answer of this witness.
It is insisted, on argument, that the district court should have sustained the motion of the railroad company to strike out all of the statements in the witness's testimony relative to what Mrs. Baier told him of the accident, because it was hearsay, no part of the res gestae, and was very prejudicial to said company. The evidence complained of was given by James Johnson. It is as follows:
Q. State how you came to be there at the depot that morning.
A. I brought some people down there from my house to take the train.
Q. Go on and state to the jury what you saw there in connection with this accident.
A. I was standing on the platform in front of the depot--I think it was in front of the depot--when the train pulled in. They stopped a few minutes in front of the depot; when they uncoupled the Lincoln car they pulled out and a few minutes after I heard a scream; I started to run in the direction from which the scream came and run a little over a hundred feet I think, and I found a lady laying across the platform. I picked her up, lifted her partly up, and then there was a gentleman, I think it was Fenster-maker, came with a lantern, and I saw her legs were cut off, and I think I told him he had better run for a doctor. While I was helping her up I asked her who she was and she told me.
Q. I will ask you if while you were helping her up there if the conductor came down there?
A. Yes, sir.
Q. Now I will ask you to state what Mrs. Baier stated at that time as to how the accident occurred.
Objected to, as incompetent, irrelevant, immaterial, hearsay, and no proper foundation laid. Overruled and exception.
(Examined by Waggener, attorney for railroad company:)
Q. Had the train gone at the time she made this statement:
A. No, sir; the train had pulled up to the platform and stopped.
Q. How long had the train been away from the spot where she was injured?
A. I don't think the train had come to a stop when I got there.
Q. How long after the scream until you heard this conversation?
A. Could not have been, I think, two minutes.
Q. First place Fenstermaker came with a lantern?
A. Yes, sir.
Q. You saw how badly she was injured?
A. Yes, sir.
Q. You told him to go for a doctor?
A. Yes, sir.
Q. He did go?
A. Yes, sir.
Q. You had the conversation with her after that?
A. Yes, sir.
(Question by court:)
Q. Was the conversation at that time?
A. Yes, sir.
(Examination resumed by Wooley, attorney for defendant in error:)
Q. She told where she came from and who she was?
A. Yes, I asked her how she came to get off of the train and she told me her name was Baier and that she was from Nehawka, and she said the conductor had told her--had come into the car when they got to Weeping Water and told them to get out at Weeping Water and change cars for Lincoln. When the train stopped at the tank she supposed it was the place, and they got off, then the conductor told them it was not the station and they had better get back on the train and ride to the depot; she said she got on, but when she got on the steps the train pulled out and her husband and children had not got on the train, and then she said when the train stopped in front of the depot she supposed it was the place to get off; she got out of the car and got on the steps, but just as she was in the act of getting off the steps the train made a jerk and she fell off.
It was of the ruling upon a motion to strike out this evidence as to what Mrs. Baier said that complaint is made in argument of the plaintiff in error. It might not be improper to observe at this point that the testimony shows without question that Mrs. Baier was immediately, after the above detailed circumstance, taken to a vacant storeroom in the town of Weeping Water, and that there both her legs were amputated, and that from the effects of the injury she died one week after the date of the accident, of which the last witness has testified.
From the above testimony...
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