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

• Decision Date: 26 June 1894
• Court: Nebraska Supreme Court
• Parties: OMAHA & R. V. RY. CO. v. CHOLLETTE.

41 Neb. 578

59 N.W. 921

OMAHA & R. V. RY. CO.

v.CHOLLETTE.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

1. Chollette v. Railroad Co., 41 N. W. 1106, 26 Neb. 159, and 49 N. W. 1114, 33 Neb. 143, followed and reaffirmed.

2. C. sued a railroad company on account of personal injuries sustained by his wife. The jury returned a general verdict for the plaintiff, and a number of special findings. The court overruled defendant's motion for judgment on the special findings, and sustained plaintiff's motion for a new trial. A second trial resulted in another verdict and a judgment for plaintiff. The defendant assigned as error the overruling by the court of its motion for judgment on the special findings at the first trial. Held, that as it was nowhere pointed out wherein the district court erred in sustaining the motion for a new trial, and as there were assignments in such motion referring to matters not preserved in the record, this court must assume that the motion for a new trial was properly sustained, and therefore the motion for judgment properly overruled.

3. Among such special findings were a number of isolated facts in relation to the conduct of the plaintiff's wife and of the railroad company, upon which defendant sought to have judgment rendered. Held, that the court properly refused to render judgment upon such findings, because the inference as to whether such facts constituted contributory negligence was for the jury, and not for the court.

4. Certain rulings upon the admission of evidence examined, and held not erroneous.

5. Section 3, art. 1, c. 72, Comp. St., providing that every railroad company shall be liable for all damages inflicted upon the person of passengers while being transported over its roads, except in cases where the injury done arises from the criminal negligence of the person injured, etc., is not restricted in its application to actions by the passengers so injured, but extends to actions by third persons for damages sustained in consequence of such injuries to passengers.

6. Therefore the rule of liability in this case by the husband for injuries sustained by the wife is to be determined by the statute referred to.

7. Whether a want of ordinary care or “criminal negligence” on the part of the plaintiff himself would defeat a recovery in this case is a question not examined, for the reason that the defendant did not plead the plaintiff's negligence, but only that of his wife.

8. Section 110, c. 16, Comp. St., providing that in case any passenger on a railroad shall be injured while on the platform of a car while in motion, in violation of the printed regulations of the company posted up at the time, in a conspicuous place inside of its passenger cars then in the train, said company shall not be liable for the injury, etc., being a limitation upon a recognized liability, is to be strictly construed; and, in order that such statute shall be applicable, the car must be in motion when the accident occurs, and there must be some connection of cause and effect between the injury of the passenger and his being upon the platform, and notices required by the statute must be posted in the cars of the train wherein the accident occurs.

9. The married woman's act does not deprive the husband of his right of action for the loss of services or companionship of his wife; and, notwithstanding that act, he may still recover to the extent that the injury sustained by his wife incapacitated her from performing the duties that reasonably devolve upon her in the marriage relation. Mewhirter v. Hatten, 42 Iowa, 288, followed.

10. Where a married woman is injured by the negligence of another, two causes of action arise,--one, for the wife for physical and mental suffering, past and future, loss of her earning capacity, and other elements ordinarily existing in such cases; the other, for the husband for the loss of his wife's services and society, and for reasonable expenses by him incurred.

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

Action by Jonathan Chollette against the Omaha & Republican Valley Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Simpson & Sornborger, for defendant in error.

IRVINE, C.

In 1886, Jonathan Chollette and Eliza Chollette, his wife, boarded a train at Wahoo, for the purpose of going to Elkhorn. Mrs. Chollette was injured either in alighting from the train at Elkhorn or by being thrown from the steps of the car as she stood there preparing to alight. This action was brought by Jonathan Chollette to recover damages for the loss of his wife's services and society and the expenses of her care and treatment. A former action brought by the wife on her own behalf, on account of the same injuries, has been twice before this court, and is reported in 26 Neb. 159, 41 N. W. 1106,and 33 Neb. 143, 49 N. W. 1114. All the questions presented upon either hearing of the former case are again presented by this record. We will not here restate these questions or re-examine them. As to the questions involved in the case reported in 33 Neb. and 49 N. W., this court has repeatedly declared the law to be in accordance with the views there expressed. As to the questions presented upon the first hearing, reported in 26 Neb. and 41 N. W., whatever might be the writer's individual views were the questions now presented for the first time, the decision has stood without question for more than five years, and the conclusions there reached would not now be disturbed, in the absence of a clear conviction on the part of the court that a fundamental error had then been committed.

A brief statement of the issues in this case may be necessary to an understanding of the questions first presented by this record. The plaintiff alleged that the railroad company failed to stop the train at Elkhorn a sufficient time to permit his wife to alight, and negligently started its cars before she had reasonable time to alight, and, while alighting, caused her to be violently thrown upon the platform, without any negligence upon her part. In addition to the defense set up in the former case, and passed upon in the first hearing thereof, the defendant answered, denying any negligence upon its part, and averring “that the injuries received by the said Eliza occurred by reason of the carelessness and negligence of the said Eliza contributing thereto;” that the injuries she received were sustained while she was standing upon the platform of the car while it was in motion; that there was posted in a conspicuous place, inside said car, printed regulations warning passengers not to stand upon the platform while the car was in motion; that there were inside of said car sufficient and safe seats and accommodations for her; and that there was no necessity of her standing or being upon the platform. Further answering, the defendant alleged that heretofore the said Eliza, with plaintiff's knowledge and consent, brought suit upon the same cause of action, and recovered thereon, and pleads that action in bar of the present. There was a trial in 1891, resulting in a general verdict for the plaintiff for $150, and a number of special findings. The defendant moved for judgment, notwithstanding the general verdict, upon the special findings, and the plaintiff moved for a new trial. The court overruled defendant's motion for judgment, and sustained the plaintiff's motion for a new trial. Upon the second trial, there was a general verdict for the plaintiff for $900, upon which judgment was rendered, and which judgment plaintiff seeks to reverse.

1. The defendant procured to be settled a bill of exceptions embracing the proceedings upon the first trial, and now complains that the court erred in sustaining the plaintiff's motion for a new trial, and in overruling the defendant's motion for judgment. We cannot say that there was any error in sustaining the motion for a new trial. There is nothing in the record to indicate upon what ground the motion was sustained, and the defendant does not point out wherein the court erred, if at all, in sustaining the motion. Among the many grounds assigned in that motion was the giving of certain instructions. The transcript of the record before us contains certain instructions given by the court upon that trial, but they are not consecutively numbered. They do not appear to be complete, and several of those of which the plaintiff complained in his motion do not appear at all in this record. If the court was right in awarding a new trial, it follows that it was right in refusing to enter judgment for defendant upon the special findings made at the first trial; but, aside from this, the court was not warranted by those findings, if they had stood, in rendering judgment notwithstanding the general verdict. These findings were for the most part of isolated facts. To have entered judgment thereon would have required the court to draw the inference that defendant was not negligent, or that Mrs. Chollette was negligent, from the facts so found. It has been repeatedly held that, where different inferences may reasonably be drawn from the facts, the ultimate question as to negligence is for the jury; and as held in Railroad Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114, the facts of this case were such as to render that inference one for the jury, and not for the court. Among the findings were the following: “(22) Was the plaintiff's wife, in her effort to alight from the car in question, guilty of the want of any ordinary care contributing to her injury? No. (23) Were the agents and employés of the Union Pacific Railroad Company guilty of negligence in not stopping long enough to allow the plaintiff to alight from the train? Yes.” Following this was a finding that the injury resulted from the negligence of the railway company, without any contributory negligence on the...