Omaha & Republican Valley Railway Co. v. Crow

• Decision Date: 04 February 1896
• Docket Number: 6054
• Citation: 66 N.W. 21,47 Neb. 84
• Parties: OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. MARILLA L. CROW, ADMINISTRATRIX
• Court: Nebraska Supreme Court

66 N.W. 21

47 Neb. 84

OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. MARILLA L. CROW, ADMINISTRATRIX

No. 6054

Supreme Court of Nebraska

February 4, 1896

ERROR from the district court of Valley county. Tried below before THOMPSON, J.

REVERSED.

John M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error:

Under the evidence there was no breach of legal duty by defendant below towards plaintiff's intestate, and the injury from which he died was caused by his own negligence proximately contributing thereto. It was error to refuse to direct a verdict for defendant. (Omaha Horse R. Co. v Doolittle, 7 Neb. 481; City of Lincoln v Gillilan, 18 Neb. 114; Missouri P. R. Co. v. Moseley, 57 F. 922; Burns v. Boston & L. R. Co., 101 Mass. 50; Clark v. Boston & A. R. Co., 128 Mass. 1; Allyn v. Boston & A. R. Co., 105 Mass. 77; Pennsylvania R. Co. v. Rathgeb, 32 Ohio St. 66; Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95; Durrell v. Johnson, 31 Neb. 796; Chicago, B. & Q. R. Co. v. Barnard, 32 Neb. 317.)

There was error in the fifth instruction given by the court. (Wood, Railway Law, p. 1075; Shoemaker v. Kingsbury, 12 Wall. [U.S.] 376; Hazard v. Chicago, B. & Q. R. Co., 1 Biss. [U.S.] 503.)

At the time of the death of deceased the company owed him no duty as a passenger. Negligence on part of defendant below in violation of its general duty to the public was not shown, and the company should not be held liable. (Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90; State v. Grand Trunk R. Co., 58 Me. 176; Baltimore & P. R. Co. v. Jones, 95 U.S. 439; Atchison & N. R. Co. v. Loree, 4 Neb. 446; Omaha & R. V. R. Co. v. Clark, 35 Neb. 867; Omaha & R. V. R. Co. v. Brady, 39 Neb. 27; Hyde v. Missouri P. R. Co., 110 Mo. 272; Louisville & N. R. Co. v. Melton, 2 Lea [Tenn.] 262.)

References to the question of contributory negligence: Chicago, R. I. & P. R. Co. v. Houston, 95 U.S. 697; Omaha & R. V. R. Co. v. Martin, 14 Neb. 295; Schmolze v. Chicago, M. & St. P. R. Co., 83 Wis. 659; Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 657; Baltimore & P. R. Co. v. Jones, 95 U.S. 439; Tuttle v. Detroit, G. H. & M. R. Co., 122 U.S. 195; Myers v. Baltimore & O. R. Co., 150 Pa. 386; Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153; Pleasants v. Fant, 89 U.S. 121; O'Donnell v. Missouri P. R. Co., 7 Mo. App., 190.

A drover in charge of live stock travels under restrictions not applicable to ordinary passengers. His contract to care for the stock limits the liability of the carrier, and he assumes the risk ordinarily incident to such employment. (2 Am. & Eng. Ency. Law, 743, note 8; Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268; Cragin v. New York C. R. Co., 51 N.Y. 61; Hutchinson, Carriers [2d ed.] sec. 322; Toledo, W. & W. R. Co. v. Black, 88 Ill. 112; Connelly v. Eldridge, 36 N.E. 469 [Mass.]; Degg v. Midland R. Co., 2 H. & N. [Eng.] 773*; Althorf v. Wolfe, 22 N.Y. 355; Mayton v. Texas & P. R. Co., 63 Tex. 77; Wright v. London & N. W. R. Co., 1 Q. B. Div. [Eng.] 252; Plant v. Grand Trunk R. Co., 27 Q. B. [U. C.] 78; Searle v. Lindsay, 11 C. B., n. s. [Eng.] 429; Gibson v. Erie R. Co., 63 N.Y. 449; Farwell v. Boston & W. R. Co., 4 Met. [Mass.] 49; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368; Brown v. Winona & St. P. R. Co., 27 Minn. 162; Randall v. Baltimore & O. R. Co., 109 U.S. 478; Wilson v. Winona & St. P. R. Co., 37 Minn. 326.)

A drover in charge of live stock who uses a pass issued upon the condition tat he will bear all the risks of transportation cannot maintain an action for personal injury received by the negligence of the carrier's servants. (Gallin v. London & N. W. R. Co., 10 L. R., Q. B. [Eng] 212; Alexander v. Toronto & N. R. Co., 35 Q. B. [U. C.] 453; Wells v. New York C. R. Co., 24 N.Y. 181; Perkins v. New York C. R. Co., 24 N.Y. 196; Bissell v. New York C. R. Co., 25 N.Y. 442; Poucher v. New York C. R. Co., 49 N.Y. 263; Annas v. Milwaukee & N. R. Co., 67 Wis. 46.)

The contract by which a party assumes the risk of injuries from the negligence of servants to another, indorsed on a free pass, issued without other consideration than that expressed in the written instrument, is not against public policy, and is binding on the person accepting and agreeing to the same, in the absence of willful or gross negligence on part of the carrier or its employes. (Wescott v. Fargo, 61 N.Y. 542; Dorr v. New Jersey Steam Navigation Co., 11 N.Y. 485; Arnold v. Illinois C. R. Co., 83 Ill. 273; Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 80; Western & A. R. Co. v. Bishop, 50 Ga. 465; McCawley v. Furness R. Co., 8 L. R., Q. B. [Eng.] 57; Hall v. North Eastern R. Co., 10 L. R., Q. B. [Eng.] 437; Duff v. Great Northern R. Co., 4 L. R. [Ir.] 178; Alexander v. Wilmington & R. R. Co., 3 Strob. Law [S. Car.] 594; Smith v. New York C. R. Co., 24 N.Y. 222; Magnin v. Dinsmore, 56 N.Y. 168; Kinney v. Central R. Co., 32 N.J.L. 407; Griswold v. New York & N. E. R. Co., 53 Conn. 371; Baltimore & O. R. Co. v. Skeels, 3 W.Va. 556.)

Reese & Gilkeson, contra:

Deceased was a passenger and entitled to all the rights and protection of a passenger for hire at the time he was killed, and the release upon the back of the ticket was void and of no effect. (New York C. R. Co. v. Lockwood, 17 Wall. [U.S.] 357; Steamboat New World v. King, 16 How. [U.S.] 469; Philadelphia & R. R. Co. v. Derby, 14 How. [U.S.] 485; Missouri P. R. Co. v. Ivey, 9 S.W. [Tex.] 346; Receivers International & G. N. R. Co. v. Armstrong, 23 S.W. 236; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Little Rock & F. S. R. Co. v. Miles, 40 Ark. 298; Carroll v. Missouri P. R. Co., 88 Mo. 239; Ohio & M. R. Co. v. Selby, 47 Ind. 471; Flinn v. Philadelphia, W. & B. R. Co., 1 Hous. [Del.] 471; Indianapolis, B. & W. R. Co. v. Beaver, 41 Ind. 493; Wilton v. Middlesex R. Co., 125 Mass. 130; Siegrist v. Arnot, 10 Mo. App., 197; Jacobs v. St. Paul & C. R. Co., 20 Minn. 125; Washburn v. Nashville & C. R. Co., 3 Head [Tenn.] 638; Delaware L. & W. R. Co. v. Ashley, 67 F. 209; Rose v. Des Moines V. R. Co., 39 Iowa 246; McLean v. Burlank, 11 Minn. 288; Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1; Missouri P. R. Co. v. Vandeventer, 26 Neb. 222; St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463.)

A person, standing in the proper place, under the circumstances, upon the premises of a railroad company, awaiting an opportunity to board his train, is still a passenger, and the railroad company is bound to use the same care and caution as to his safety, and is under the same obligation to him as if he were in the car in which he is to be transported. (Warren v. Fitchburg R. Co., 8 Allen [Mass.] 227; Peniston v. Chicago, St. L. & N. O. R. Co., 34 La. Ann., 777; Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207; Parsons v. New York C. & H. R. R. Co., 113 N.Y. 355; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568; Dice v. Willamette Transportation Co., 8 Ore., 60; Gordon v. Grand Street & N. R. Co., 40 Barb. [N.Y.] 546; Caswell v. Boston & W. R. Co., 98 Mass. 194; Central R. Co. v. Perry, 58 Ga. 461.)

The question of negligence was for the jury to determine from the evidence. (Chicago, B. & Q. R. Co. v. Oleson, 40 Neb. 889; Omaha & R. V. R. Co. v. Morgan, 40 Neb. 604; Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb. 660; Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 642; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890; Missouri P. R. Co. v. Baier, 37 Neb. 235; Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448.)

Charles A. Munn, also for defendant in error.

RYAN, C. HARRISON, J., not sitting.

OPINION

The opinion contains a statement of the case.

RYAN, C. J.

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...