Omaha & R. V. Ry. Co. v. Wright

• Decision Date: 07 April 1896
• Citation: 66 N.W. 842,47 Neb. 886
• Parties: OMAHA & R. V. RY. CO. v. WRIGHT ET AL.
• Court: Nebraska Supreme Court

47 Neb. 886

66 N.W. 842

OMAHA & R. V. RY. CO.

v.WRIGHT ET AL.

Supreme Court of Nebraska.

April 7, 1896.

Syllabus by the Court.

1. An allegation of negligence in a pleading is, like one of fraud, a mere conclusion. The facts from which the inference of negligence arises must be pleaded.

2. It is error to submit to the jury an issue of negligence not raised by a pleading of specific facts.

3. It is the duty of an engineer in charge of a train to exercise such a lookout as is consistent with his other duties to ascertain the presence of obstructions on the track, and if such a precaution would have revealed the presence of stock in time to have avoided their injury by the use of ordinary care, the railroad company is liable for injuries inflicted upon them, although they were not actually seen until too late to avoid striking them, and although they were not without the protection of the statute requiring tracks to be fenced.

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

Action by George M. Wright and another, partners as Wright & Allen, against the Omaha & Republican Valley Railway Company. There was a judgment for plaintiffs, and defendant brings error. Reversed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

R. S. Norval, for defendants in error.

IRVINE, C.

The defendants in error brought this action against the railway company to recover damages on account of cattle belonging to them, killed and injured by a train of the railway company. The petition, while it is in one count, really alleges or attempts to allege three grounds of recovery: First, that a gate on one of the fences along the right of way was insufficient, and negligently permitted to be out of repair, and that, by reason of those facts, the cattle got upon the right of way; second, that after they got upon the right of way, their injury resulted from the careless operation of the train; third, that the railway company, after the stock was injured, took possession of the dead bodies and the injured cattle, and refused to permit the owner to retake them,--that is, a charge of conversion. The answer of the railway company was a series of denials,--some of them negatives pregnant, but the whole effect practically that of a general denial,--coupled with some affirmative allegations in regard to the security of the gate and negligence on the part of the plaintiffs. From a verdict and judgment in favor of the plaintiffs for $569, the defendant prosecutes error.

Many assignments of error relate to rulings on the admission of evidence, and to the refusal of instructions with regard to the character of the gate, and the duty and liability of the railway company concerning the gate, and flowing from its condition. The railway company is not, however, in any position to complain of these rulings. The statutes on the subject are found in Comp. St. c. 72, art. 1, §§ 1, 2. The court, after stating the issues, stated to the jury the substance of the statute, and then charged the jury that the duty was imposed by statute of erecting and maintaining gates, openings, or bars at private crossings, only with regard to adjoining proprietors, and that, if the cattle were upon the premises of an adjoining proprietor, without his consent, and escaped therefrom upon the right of way without negligence of the defendant, and were killed without its negligence, there could be no recovery. The evidence was uncontradicted that the cattle of the plaintiffs, about 340 in number, were in a corral north of the railway and west of the land of one Wallen, that they escaped from the corral upon the land of Wallen, and thence came through the gate in question upon the right of way. There was no evidence of any act of the railway company leading to their escape. Therefore, the effect of this instruction was to absolutely prevent a recovery on the ground of a violation of the fencing law. Whether or not the court correctly interpreted the statute we need not and cannot here consider, because the construction given it was so favorable to the railway company that, under the evidence, all question of liability thereunder was eliminated from the case. Nor need we extensively consider any questions raised by the pleadings and proof as to the defendant's taking possession of the dead and injured cattle, and converting them to its own use. On the trial of the case this issue was evidently a minor...