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

• Citation: 66 N.W. 21,47 Neb. 84
• Court: Supreme Court of Nebraska
• Decision Date: 04 February 1896
• Parties: OMAHA & R. V. RY. CO. v. CROW.

47 Neb. 84

66 N.W. 21

OMAHA & R. V. RY. CO.

v.CROW.

Supreme Court of Nebraska.

Feb. 4, 1896.

Syllabus by the Court.

1. A shipper of cattle, who, for the purpose of enabling him to care for his stock in transit, receives a drover's pass, is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire, and an instruction to the contrary effect was erroneous.

2. One who ships cattle, and undertakes, upon a pass given him for that purpose, to accompany and care for his stock in transit, does so under the implied conditions that he will submit to whatever inconveniences are necessarily incident to his undertaking.

3. In an action for damages from injuries inflicted by an engine upon a shipper of live stock, who was accompanying and caring for such stock under the arrangement above indicated, the question of the existence of negligence such as would give rise to a cause of action, or of such contributory negligence as would defeat it, is one of fact, to be determined by the jury.

Error to district court, Valley county; Thompson, Judge.

Action by Marilla L. Crow, administratrix of Jonathan S. Crow, deceased, against the Omaha & Republican Valley Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Reese & Gilkeson and Chas. A. Munn, for defendant in error.

RYAN, C.

In the district court of Valley county there was recovered a verdict in the sum of $5,000, upon which judgment was rendered, in favor of the defendant in error. In describing the pleadings and the proceedings in the district court, it will probably avoid confusion to designate the parties according to their relation to the suit in that court, rather than--as each is--plaintiff in error or defendant in error in this court. The plaintiff, Marilla L. Crow, in her petition, alleged that she was the administratrix of the estate of Jonathan S. Crow, deceased; that the defendant was a common carrier of freight and passengers over a line of railroad between Ord and South Omaha, which it owned; that on March 3, 1892, the said defendant, in consideration of the receipt by it of $126 paid by Jonathan S. Crow, undertook to ship three car loads of cattle, and safely carry said Jonathan S. Crow from Ord to South Omaha, but that while said Jonathan S. Crow was being carried in pursuance of said undertaking, and while he was performing his duty in looking after and taking care of said cattle while they were being transported to South Omaha, the said defendant negligently and carelessly ran an engine against, upon, and over said Jonathan S. Crow, and thereby caused his death. There were described in the petition eight children of said decedent, who survived him, and it was alleged that these survivors, and the widow of Jonathan S. Crow, had sustained damages by his death in the sum of $5,000, for which sum judgment was prayed. The answer was in denial of all the averments of the petition. At the commencement of the trial it was admitted in open court that the plaintiff was the duly-qualified administratrix of the estate of Jonathan S. Crow; that said decedent left, him surviving, the widow and children described in the petition; that said widow and surviving children at the time of said trial were the heirs at law of said Jonathan S. Crow, and as such were entitled to the benefit of the statutes of Nebraska in that behalf enacted; and that this suit was instituted for their benefit, under the statutes. It was also admitted that the age and physical condition of Jonathan S. Crow had been such, just before his death, that, if plaintiff was at all entitled to recover, the verdict must be for $5,000.

As the defendant offered no evidence whatever, there is but little room for disagreement as to the ultimate facts which must determine this error proceeding. On March 3, 1892, Jonathan S. Crow & Son shipped three car loads of cattle from Ord to South Omaha. For the purpose of taking care of these cattle, Jonathan S. Crow was permitted to accompany his cattle, and accordingly there was issued to him a ticket by its terms good only for a continuous passage on the same train. On the back of this ticket were printed conditions required to be, and which were, signed by Mr. Crow, whereby he assumed all risk of accidents, and agreed that the Union Pacific system should not, under any circumstances, be liable for damage of any kind, whether to himself or to the stock which he was to accompany. Under the repeated decisions of this court, we cannot think that this stipulation of release should cut any figure in this case. Railroad Co. v. Palmer, 38 Neb. 463, 56 N. W. 957;Railway Co. v. Vandeventer, 26 Neb. 222, 41 N. W. 998. There was shipped by the same train to South Omaha, from Ord, other car loads of stock, and these were accompanied by shippers who were neighbors and acquaintances of Mr. Crow. When the train reached Grand Island all these shippers left the caboose, and sought to procure a lunch at what had formerly been a lunch stand near or upon the line of the Union Pacific Railway. When, not being able to procure a lunch, these shippers sought their train, they found it had been placed in the freight yard of said Union Pacific Railway, and that both the engine and the caboose had been therefrom detached. It was conclusively shown in evidence that the only safe course open to...