Omaha Fair & Exposition Ass'n v. Mo. Pac. R. Co.

• Decision Date: 02 October 1894
• Citation: 60 N.W. 330,42 Neb. 105
• Court: Nebraska Supreme Court
• Parties: OMAHA FAIR & EXPOSITION ASS'N ET AL. v. MISSOURI PAC. R. CO. ET AL.

42 Neb. 105

60 N.W. 330

OMAHA FAIR & EXPOSITION ASS'N ET AL.

v.MISSOURI PAC. R. CO. ET AL.

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. Where a new trial is asked for, on the ground of misconduct of a juror or of the prevailing party, the finding of the trial court in support of the verdict will not be set aside unless the evidence of misconduct is of a clear and convincing character.

2. While all communications during a trial between jurors and persons connected with the case are to be avoided, still a verdict should not be set aside because a witness has been seen in conversation with a juror, where it is made to appear that there was no communication with reference to the case.

3. Where the facts of a case call for the application of a specialization of or a limitation of, a general rule of law, an instruction simply stating the general rule is not erroneous where other instructions correctly state the specialization or limitation.

4. It is not error to refuse an instruction which states to the jury an inference of fact to be drawn from the evidence and no rule of law.

5. Error cannot be predicated upon the submission of an issue to the jury when the party alleging such error, by a request for an instruction, himself asked the submission of the issue.

6. The owner of land cannot be deprived of the free enjoyment of his property by the construction of a railroad adjacent thereto, and therefore his failure to take unusual precautions against its destruction by fires negligently set out by the railroad cannot be urged as a defense to an action to recover for such loss; nor can contributory negligence in such cases be predicated upon his proper use of his property in the usual manner, but the obvious hazard of fires is a fact which he cannot disregard, and he is bound to take such precautions as a person of ordinary prudence would take for the protection of his property, not against anticipated negligence of the railroad, but against such obvious hazards.

7. Where several cases, with different plaintiffs, presenting different states of fact, were, by agreement, tried together, and, by stipulation, all the plaintiffs joined in one motion for a new trial and in one petition in error, held, that the proceedings were indivisible, and that the judgment must be affirmed as to all if free from error as to one.

Error to district court, Douglas county; Doane, Judge.

Action by the Omaha Fair & Exposition Association and others against the Missouri Pacific Railway Company and others, to recover damages caused by fire. There was a judgment for defendants, and plaintiffs bring error. Affirmed.Montgomery, Charlton & Hall, Breckenridge, Breckenridge & Crofoot, and R. W. Barger, for plaintiffs in error.

B. P. Waggener and R. S. Hall, for defendants in error.

IRVINE, C.

The grounds of the Omaha Fair & Exposition Association lay near a railroad belonging to the Omaha Belt Railway Company, and operated by the Missouri Pacific Railway Company. A fire started betweenthe tracks of the railroad and the fair grounds, destroying a portion of the fence surrounding the latter, and certain buildings. The fair and exposition association held insurance on this property in a number of companies. After adjustment and payment of the loss, the fair and exposition association and the insurance companies joined in an action against the Missouri Pacific Railway Company to recover from that company on account of said loss, alleging that the fire had been negligently set out by the railroad company. The negligence specifically alleged was the defective construction of an engine, and the permitting of dry grass and weeds and old ties to accumulate on the right of way. Certain other persons, who owned buildings situated upon the fair grounds, which were destroyed by the same fire, brought separate actions to recover for the same loss. Some of these were brought against both the Missouri Pacific and the Omaha Belt Railway Company. In some of these actions, insurance companies joined as plaintiffs, on the same grounds as in the principal case. In some of the cases, answers and replies were filed, and issues duly made. In one, at least, there was a stipulation to consider the case at issue on the same issues as made by the pleadings in other cases. The cases were tried together, and there were separate verdicts in favor of the defendants in each case. A stipulation was filed that only one motion for a new trial need be filed; that such motion, entitled in each case, should be considered a motion for a new trial in each case; that the cases should be heard together upon the motion for a new trial, and, in case it should be overruled, said cases should, for the purpose of prosecuting a petition in error, be consolidated and taken to and heard in the supreme court upon one petition in error and one record, and that only one bill of exceptions should be settled, the same to apply to each of the cases. Separate judgments were, however, entered by the district court. The plaintiffs in all the cases have now joined in one petition in error, seeking a reversal of these judgments.

1. The first question we are called upon to consider relates to assignments of error in regard to the overruling of the motion for a new trial, in so far as it is based upon charges of misconduct of a juryman and of the defendants. The evidence upon these charges is substantially as follows: There are affidavits of two attorneys for the plaintiffs that a witness in said action was one Smith, an expert engineer and master mechanic, at the time of the trial an employé of a railroad company in Texas, and, at the time of the fire in controversy, roundhouse foreman and inspector of engines for the defendant; that one Gibb was a juryman engaged in the trial of the case; that after the adjournment of court one evening, after the arguments to the jury had been commenced, and before they were concluded, the attorneys making the affidavits entered the barroom of a hotel in Omaha, and, while there, Smith and Gibb entered the room. They approached the bar, and stood at some distance from the attorneys. The attorneys heard Smith ask Gibb what he would take, heard Gibb answer, and saw Smith order drinks. Then Smith turned to the attorneys, and invited them to drink, but they declined. They then saw Smith hand money to the bartender, apparently in payment. Gibb testifies that, when Smith lived in Omaha, he and Gibb were intimate friends; that during the trial he held no communication with Smith until informed by another juryman that the trial judge had informed him that a juryman might speak to a witness during the trial, provided there was no communication in reference to the case; that, accordingly, Gibb entered into a conversation with Smith on such topics as their former intimacy suggested, and, as Smith was about to depart, asked him to take a drink; that Gibb took soda water; that there was no conversation between them in any wise relating to the case.

The question as to whether or not a verdict would be set aside merely upon proof that a juryman partook of intoxicating liquors during the trial is not presented by this record. The attorneys both testify that they heard Gibb's answer to Smith's inquiry as to what Gibb would take, but they do not state what that answer was. They say that they heard the drinks ordered, but they do not say what was ordered. Gibb's testimony that he drank soda water stands, therefore, undisputed. This feature may, therefore, be dismissed from consideration, and our attention directed to the proof by which it is attempted to establish an undue influence upon the juryman. In the first place, the trial court found in favor of the defendants on this point, and the findings of that court should not be disturbed if supported by sufficient evidence. The evidence would have to be very clear and convincing to support a reversal against the finding of a trial judge on such a point. Foxworthy v. City of Hastings, 31 Neb. 835, 48 N. W. 901;Everton v. Esgate, 24 Neb. 235, 38 N. W. 794;Cortelyou v. McCarthy, 37 Neb. 742, 56 N. W. 620. In the next place, the evidence was conflicting as to whether the witness purchased the drinks for the juror, or the juror for the witness. The cases cited of Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, and Vose v. Muller, 23 Neb. 171, 36 N. W. 583, were cases where favors had been bestowed on jurors by the prevailing party or his attorney; and the case of Johnson v. Greim, 17 Neb. 447, 23 N. W. 338, was one where the jury, during a view of the premises, had taken a meal at the house of the prevailing party; and the verdict was sustained, upon the ground that they were in charge of a bailiff instructed to provide them with food; that there was no other available place; and that the jury was therefore placed under no obligations to the prevailing party. Mere communications between a party and a juror, not referring to the case, and unaccompanied by circumstances creating obligations, or such as would probably create a sense of obligation, have never been held in this state sufficient alone to vitiate a verdict. There was affirmative testimony that no communication took place in regard to the case; that the communication flowed simply from the meeting of old friends; and there was evidence from which the trial court might have found that, if obligations were created, they were upon the witness, and not upon the juror. But the evidence was not such as to require the trial court to treat the act of Smith as that of the defendant. It might be in some cases that the relations of a witness to one of the parties would be such that a communication between such witness and a juror should be looked upon with as much suspicion as a communication with a party; but it was shown that Smith had left the employ of the defendant, was then living in a distant state, and the trial court was justified, under the evidence, in...