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

• Decision Date: 21 October 1896
• Parties: OMAHA & R. V. RY. CO. v. WRIGHT ET AL.
• Court: Nebraska Supreme Court

49 Neb. 456

68 N.W. 618

OMAHA & R. V. RY. CO.

v.WRIGHT ET AL.

Supreme Court of Nebraska.

Oct. 21, 1896.

Syllabus by the Court.

1. A general allegation of negligence is good as against a demurrer; and, under such an allegation, evidence of any fact which contributed to the injury sued for is competent and relevant.

2. Where a pleader relies upon one or more specific acts or omissions as negligence, then evidence of any act or omission not within some of such specifications is irrelevant.

3. The first and second points of the syllabus

of Railway Co. v. Wright, 66 N. W. 842, 47 Neb. 886, disapproved.

On rehearing.

Former opinion, 66 N. W. 842, reversed.

RAGAN, C.

This is a rehearing of Railway Co. v. Wright, reported in 47 Neb. 886, 66 N. W. 842, where will be found a sufficient statement of the facts. Wright et al. alleged in their petition that the railway company, “by its agents and employés, while running at a high rate of speed, carelessly and negligently, without using due caution, ran the engine and train of cars connected therewith and attached thereto over and upon the cattle of these plaintiffs.” “That the said defendant carelessly and negligently, by its employés and servants, in operating said train, ran their said engine and train in, over, and upon said plaintiff's stock, when, by exercising proper care and skill in the management and handling of its engine and train, it could have stopped said train long before striking said plaintiff's stock.” On the trial of the case in the district court, the evidence tended to show that the engineer in charge of the train, by the exercise of due care, could have seen the cattle of Wright et al. in time to have stopped the train and avoided injuring them; and the court submitted to the jury the question of the defendant's liability under instructions that, if the engineer saw the cattle, or, by the exercise of due care, could have seen them, in time to have stopped the train and avoided the accident, the company was liable for his not so doing. On the former hearing, we held that the instructions were correct as abstract statements of law, but reached the conclusion that the instructions submitted to the jury an issue not made by the pleadings, and for that reason were of opinion that the judgment of the district court should be reversed. A re-examination of the question, however, has led us to a different conclusion. The rule, we think, is this: That a general allegation of negligence is good against a demurrer; and, under such an allegation, evidence of any fact which contributed to the injury sued for is competent and relevant; but, where a pleader relies upon one or more specific acts or omissions as negligence, then evidence of any act or omission not within some of such specifications is irrelevant. Grinde v. Railroad Co., 42 Iowa, 376;Garner v. Railroad Co., 34 Mo. 235;Schneider v. Railroad Co., 75 Mo. 295;Mack v. Railroad Co., 77 Mo. 232; Black, Proof & Pl. § 139; Clark v. Railroad Co., 28 Minn. 69, 9 N. W. 75;Keating v. Brown, 30 Minn. 9, 13 N. W. 909;Lucas v. Wattles, 49 Mich. 380, 13 N. W. 782;Ware v. Gay, 11 Pick. 106; Smith v. Railroad Co., 10 R. I. 22; House v. Meyer, 100 Cal. 592, 35 Pac. 308;Sullivan v. Railroad Co., 97 Mo. 113, 10 S. W. 852;Pope v. Railroad Co., 99 Mo. 400, 12 S. W. 891; Railroad Co. v. McCartney, 121 Ind. 385, 23 N. E. 258; ...