Omaha Fair & Exposition Association v. Missouri Pacific Railway Company

• Decision Date: 02 October 1894
• Docket Number: 4588
• Citation: 60 N.W. 330,42 Neb. 105
• Parties: OMAHA FAIR & EXPOSITION ASSOCIATION ET AL. v. MISSOURI PACIFIC RAILWAY COMPANY ET AL
• Court: Nebraska Supreme Court

60 N.W. 330

42 Neb. 105

OMAHA FAIR & EXPOSITION ASSOCIATION ET AL. v. MISSOURI PACIFIC RAILWAY COMPANY ET AL

No. 4588

Supreme Court of Nebraska

October 2, 1894

ERROR from the district court of Douglas county. Tried below before DOANE, J.

AFFIRMED.

Montgomery Charlton & Hall, Breckenridge, Breckenridge & Crofoot, and R W. Barger, for plaintiffs in error.

R. S Hall and B. P. Waggener, contra.

OPINION

See opinion for citation of authorities.

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 between the tracks of the railroad and the fair grounds, destroying a portion of the fence surrounding the latter and certain buildings. The Fair & Exposition Association held insurance on this property in a number of companies. After adjustment and payment of the loss, the Fair & 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 property situated upon the fair grounds which was 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 was a separate verdict 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 was 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 employe 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 anywise 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 established an undue influence upon the juryman. In the first place the trial court found in favor of the defendants on this point, and the finding 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 the trial judge on such a point. (Foxworthy v. City of Hastings, 31 Neb. 825, 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 regarding him as it would any other witness. Certainly, a verdict should not be set aside upon such evidence of transactions between a juror and a casual witness where an absence of all communications with reference to the case is affirmatively shown. It can hardly be too often repeated that parties, counsel, witnesses, and all other persons should be extremely careful to avoid evil and the appearance of evil in their relations to jurors. It is sometimes necessary, to avoid the possibility of error, that verdicts be set aside simply because there may have been an undue influence exerted, and for that reason even innocent communications are fraught with some danger. In this case, however, the showing made by the plaintiffs was so explained that the trial judge did right in not setting aside the verdict upon this ground.

2. All the other assignments relate to the instructions given and refused. In the petition in error error is assigned on these subjects in the same manner as in Hiatt v. Kinkaid 40 Neb. 178, 58 N.W. 700. This form of assignment, therefore, precludes us from examining any group further than to ascertain that the action of the district court was correct as to one instruction of that group. Among the instructions given by the court of its own motion and so grouped was the following: "If you shall find from all the testimony that what was done or omitted to be done by the defendants was such as would not have been done or omitted to be done by a person of ordinary prudence, under like circumstances, then negligence would be imputed to the defendants for such act or omission." The criticism of this instruction is that it makes ordinary care the test and fails to state to the jury the degree of care required to prevent fires along railroads owing to the extra hazard in such cases; but, at the request of plaintiffs the jury was instructed that it was the duty of a railroad company to take such precaution against danger of any kind, including the danger of setting out fire, as the magnitude of the peril demands, and that the ordinary care to be used in the management of a railroad requires precautions, which, if used in any business involving less risk, would be deemed...