Omaha & R. V. R. Co. v. Chollette

• Decision Date: 13 October 1891
• Citation: 33 Neb. 143,49 N.W. 1114
• Parties: OMAHA & R. V. R. CO. v. CHOLLETTE.
• Court: Nebraska Supreme Court

33 Neb. 143

49 N.W. 1114

OMAHA & R. V. R. CO.

v.CHOLLETTE.

Supreme Court of Nebraska.

Oct. 13, 1891.

Syllabus by the Court.

1. The testimony being conflicting, it was properly submitted to the jury, and the court did not err in refusing to instruct to find a verdict for the defendant.

2. The law of a case, having been declared on a former hearing, will not be recapitulated in the syllabus.

3. Instructions set out in the opinion held to state the law correctly.

Error to district court, Saunders county; POST, Judge.

Action by Eliza Chollette against the Omaha & Republican Valley Railroad Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. Affirmed.

This is the second appeal. For prior report, see 26 Neb. 159, 41 N. W. Rep. 1106.J. M. Thurston and W. R. Kelly, for plaintiff in error.

S. H. Sornborger, for defendant in error.

MAXWELL, J.

This case was before this court in 1889, and is reported in 26 Neb. 159, 41 N. W. Rep. 1106, the judgment of the court below being reversed. On the second trial the jury returned a verdict in favor of the defendant in error for the sum of $4,000, upon which judgment was rendered. The jury made special findings of fact, as follows: “(1) Was the train upon which the plaintiff was a passenger at the time when her injuries were received, stopped at the platform at the passenger station where the accident occurred for the purpose of receiving and discharging freight and passengers? Answer. Yes. (2) Did the train, after stopping at the platform of the passenger station where the injuries complained of were received, begin to move out from the station before the plaintiff descended the steps for the purpose of alighting therefrom? A. Yes. (3) Did the plaintiff voluntarily descend the steps for the purpose of alighting therefrom while the train was in motion? A. Yes. (4) Was the plaintiff warned by the conductor or trainmen and by by-standers not to get off the car while the same was in motion? A. No. (5) Did the plaintiff leave the car while the train was in motion by stepping down the steps of the car platform after having been warned not to do so by the railway company's servants and employes and others? A. No. (6) Could the plaintiff, by the exercise of such care with respect to alighting or not alighting from the train when the same was in motion, as an ordinarily prudent person would have exercised under the circumstances, have avoided the injury complained of? A. No. H. L. LITTRELL, Foreman.” The testimony upon the principal questions involved is conflicting, and therefore proper to submit to a jury.

The plaintiffs in error complain of the instructions, which must be construed together. Those given by the court on its own motion are as follows: “The particular wrong which is charged as the ground of the action is that the said defendant negligently and carelessly failed and refused to allow her a reasonable time to alight from its cars at said station, and that it negligently and carelessly started its said cars in which she was a passenger before she had a reasonable time to alight therefrom, and that, in consequence thereof, she was violently thrown down upon the platform at said station, by reason of which she was bruised and otherwise injured. She charges that in consequence of said injuries she has suffered great pain, and is permanently sick and afflicted, to her damage. (2) The defendant for answer denies all the allegations of negligence in plaintiff's petition, and charges that whatever injuries were received by her, if any, were in consequence of her own negligence in attempting to alight from said train while the same was in motion, contrary to the instructions and cautions of its agents and servants and others given at the time in question. The plaintiff, for reply, denies all the allegations of negligence on her part. (3) The burden of proof in this case is upon the plaintiff in the first instance, and, in order to recover, she must establish the truth of the material allegations of her petition by a preponderance of testimony. If the preponderance is with the defendant, or if the testimony is evenly balanced, you would have to find for the defendant. (4) The burden or preponderance of testimony does not necessarily depend upon the number of witnesses who have testified for the respective sides. In determining the question, you are at liberty to take into consideration the interest of the witnesses, or any of them, in the result of your verdict; their relationship to the parties in interest, if any; their intelligence; their means or opportunities for knowing the truth of the matters about which they testify; the reasonableness or unreasonableness of their stories; the extent to which they are corroborated by other witnesses, if at all. You may note their appearance and demeanor while upon the witness stand before you; and observe the candor and fairness with which they testify, or the want of these qualities; and determine for yourselves the weight or credit which should be given to the testimony of the several witnesses. (5) By section 3 of chapter 12 of our Compiled Laws it is...