Omaha & Republican Valley Railroad Company v. Cook
| Decision Date | 30 June 1893 |
| Docket Number | 5101 |
| Citation | 55 N.W. 943,37 Neb. 435 |
| Parties | OMAHA & REPUBLICAN VALLEY RAILROAD COMPANY v. MARY COOK |
| Court | Nebraska Supreme Court |
ERROR from the district court of Howard county. Tried below before HARRISON, J.
AFFIRMED.
J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error:
The court erred in sustaining the challenge for cause made by plaintiff below to the juryman Salter. He was examined by counsel and the court. The evidence disclosed no circumstance from which a suspicion of bias in the mind of the juror for or against either party could arise. The juror declares that he has no feeling favoring the railroad company as a suitor in the case, and that his verdict would nor could in no way be affected by his business relations. The ruling of the court disregards the law that in the absence of any evidence to the contrary the juror must be presumed competent, and that the court has no right to disregard undisputed evidence. Mere friendliness for the company is not ground for suspicion of bias. The challenge to the juror Spangler should not have been sustained. He had heard from some one what purported to be the facts in the case, but formed or expressed no opinion as to the rights of the parties and was under no obligation to the company. (Reynolds v. United States, 98 U.S. 155.) The mere fact of past business relations with the company is not sufficient cause for sustaining a challenge to a juror. (Central R. Co. v. Mitchell, 63 Ga. 173.) The challenge to the juror Jackson should not have been sustained on the ground that he was not a resident of Howard county. It appeared that he had been a resident of that county for six months, and testified that he came with the intention of making it his home. The place where a person lives is taken to be his domicile until facts adduced establish the contrary, and when once acquired the domicile is presumed to continue until it is shown to be changed. The challenge to the juror Salter was overruled. The jury was impaneled and sworn. After the commencement of the trial, without any further evidence or reason, the court, of its own motion, excused Salter from the jury and sustained the challenge. There was no evidence showing his incompetency. No fact was shown which rendered it probable that the verdict would be set aside if he were retained upon the jury. The ruling sustaining the challenge was erroneous.
A. A. Kendall, contra, cited: Ensign v. Harney, 15 Neb. 330; Marion v. State, 20 Neb. 238; Collins v. People, 103 Ill. 23; Holt v. State, 9 Tex.App. 571; State v. Jones, 97 N.C. 469; 12 Am. & Eng. Encyl. Law, p. 366.
The facts are stated in the opinion.
The amended petition of the plaintiff below, after stating the corporate existence of the defendant company and the operation of its road running northwesterly through the counties of Hall, Howard, Greeley, and Valley to Ord Nebraska, avers, in substance, that on the 8th day of September, 1884, the plaintiff, being then a child of the age of thirteen years, while walking upon the track of the said railroad company, in the county of Greeley, in said state, was run into and against and violently struck and thrown from the track of the said railroad company by a locomotive attached to a passenger train then in use upon the said track of the said railroad company; that by reason of being struck and thrown from said track by the said locomotive, this plaintiff was frightfully mangled and permanently injured; that this plaintiff's right leg and hip were broken, and the plaintiff's left foot was terribly mangled and crushed and bruised, and the flesh torn thereform, and the heel severed from the said foot, and the use of said foot was thereby permanently injured and destroyed, and plaintiff has suffered, and still suffers, greatly with bodily pain by reason of said injury, and that the injury to the said foot was so great that said foot has never been healed up and still remains an open sore; that said foot is of an ill-shape in consequence thereof, and plaintiff is unable to wear a shoe upon it owing to its ill-shape and its unhealed condition; that plaintiff, in consequence, is unable to stand or walk upon said foot, and is unable to work and maintain herself in any way, and has, in consequence of said injury, become a helpless cripple for life.
The petition further alleges that plaintiff was struck and run against by said locomotive through the gross neglect and carelessness of the said Omaha & Republican Valley Railroad Company, said neglect and carelessness being in not providing its locomotive and cars thereto attached with the latest improved and best appliances for the operating, controlling and stopping of said locomotive and train of cars; and through the gross negligence and carelessness of its agents, employes, and servants in charge of the said train, and not through any act of carelessness on the part of this plaintiff.
It also avers that said locomotive and train of cars attached thereto were not supplied with air brakes, they being the latest improved and best appliances then in use upon all carefully equipped trains for speedily controlling and stopping them; that said locomotive and cars thereto attached were running off from the schedule time stated by said railroad company, a fact at that time unknown to plaintiff; that they were running at a greater rate of speed than allowed by the rules of said company, to-wit, at a rate of forty miles an hour; that the defendant's operators, agents, and servants in charge of said train of cars, carelessly neglected to sound the whistle and ring the bell of the said locomotive to apprise the plaintiff of its approach although they were able to see the plaintiff more than seventy rods in front of the said locomotive and train, and they carelessly and negligently failed to slacken or stop the said locomotive and train of cars, although the said agents, servants, operators, and engineer in charge thereof had ample opportunity to stop said train of cars before injuring the plaintiff, had said train of cars been properly supplied with air brakes and had said operators, agents, servants and engineer applied all means within their power to stop said locomotive and train after discovering the perilous situation of the plaintiff.
And the petition alleges that by reason of the carelessness and negligence of the said Omaha & Republican Valley Railroad Company as above set forth, and the gross negligence of its agents, employes, operators, and engineer, as above set forth, and the injury sustained by this plaintiff in consequence thereof, this plaintiff has been damaged and injured in the sum of $ 25,000, no part of which has been paid by the said Omaha & Republican Valley Railroad Company, nor by any other person or corporation.
Wherefore, plaintiff prays judgment against it for the sum of $ 25,000, with interest thereon from the 8th day of September, 1884, and for the cost of this action.
To this petition the railway company filed an answer:
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