Omaha & Republican Valley Railway Company v. Chollette

• Decision Date: 26 June 1894
• Docket Number: 5692
• Citation: 59 N.W. 921,41 Neb. 578
• Parties: OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. JONATHAN CHOLLETTE
• Court: Nebraska Supreme Court

59 N.W. 921

41 Neb. 578

OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. JONATHAN CHOLLETTE

No. 5692

Supreme Court of Nebraska

June 26, 1894

ERROR from the district court of Saunders county. Tried below before BATES, J.

AFFIRMED.

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

The court erred in admitting in evidence the plaintiff's statement of the remark make by the brakeman. (1 Greenleaf Evidence, sec. 113; Felt v. Amidon, 43 Wis. 471; Hazleton v. Union Bank of Columbus, 32 Wis. 49; Lund v. Tyngsborough, 9 Cush. [Mass.], 36; Kittle v. St. John, 7 Neb. 73; Village of Ponca v. Crawford, 18 Neb. 551; Gale Sulky Harrow Co. v Laughlin, 31 Neb. 103; Adams v. Hannibal & St. J. R. Co., 74 Mo. 553; Patterson v. Wabash, St. L. & P. R. Co., 19 N.W. [Mich.], 761; Luby v. Hudson River R. Co., 17 N.Y. 133; McCartny v. State, 1 Neb. 123.)

The court erred in not permitting the conductor to testify whether or not the train stopped a sufficient length of time for the passengers to alight. (Lawson, Expert and Opinion Evidence, pp. 86, 87; Mobile & M. R. Co. v. Blakeley, 59 Ala. 472; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 586; Ardesco Oil Co. v. Gilson, 63 Pa. St., 146; Seaver v. Boston & M. R. Co., 14 Gray [Mass.], 466.)

A married woman is entitled to her own time, and is not under any legal obligation to contribute to, or render her services for, her husband. He has no interest in, or right of action for, any loss resulting from personal injury to her. (Lewis v. Babcock, 18 Johns. [N. Y.], 443; Schouler, Domestic Relations, 107-110, 243; Weldon v. Winslow, L. R. 13, Q. B. Div. [Eng.], 786; 1 Chitty, Pleading [11th Am. ed.], 73; Connors v. Connors, 4 Wis., 112; Elliott v. Bentley, 17 Wis. 591; Todd v. Lee, 15 Wis. 365*; Compiled Statutes, sec. 4, ch. 53; Pope v. Hooper, 6 Neb. 178; Omaha Horse R. Co. v. Doolittle, 7 Neb. 481; Shortell v. Young, 23 Neb. 408.)

The measure of damages was erroneously submitted in an instruction of the court under which the jury was allowed to consider the amount expended in employing physicians and for medicine. There was no evidence that such expenses were reasonable and necessary. (Union P. R. Co. v. Ogilvy, 18 Neb. 643; Smith v. Evans, 13 Neb. 316; Walrath v. State, 8 Neb. 91; Steele v. Russell, 5 Neb. 216; Holmes v. Boydston, 1 Neb. 346; Galveston H. S. & A. R. Co. v. Thormsberry, 17 S.W. [Tex.], 521; International & G. N. R. Co. v. Simcock, 17 S.W. [Tex.], 47; 1 Greenleaf, Evidence, sec. 124.)

It was error for the court to refuse the seventh instruction asked by the defendant. (Cheney v. Boston & M. R. Co., 11 Met. [Mass.], 121; O'Brien v. Boston & W. R. Co., 15 Gray [Mass.], 20; O'Neill v. Lynn & B. R. Co., 29 N.E. [Mass.], 630.)

Simpson & Sornborger, contra, cited: Chollette v. Omaha & R. V. R. Co., 26 Neb. 159; Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143; Mewhirter v. Hatten, 42 Iowa 291.

IRVINE, C. POST, J., not sitting.

OPINION

The facts are stated by the commissioner.

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 nor re-examine them. As to the questions involved in the case reported in 33 Neb. 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. 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 was inside 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 theretofore the said Eliza, with plaintiff's knowledge and consent, brought suit upon the same cause of action and recovered thereon, and pleaded 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 the 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 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 Omaha & R. V. R. 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 employes 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 part of the plaintiff and his wife. These direct findings upon these issues properly left to the jury could not be disregarded by the court's determining that upon other special findings the jury should have drawn the inference of contributory negligence. Section 110, chapter 16, Compiled Statutes, provides the following: "In case any passenger on any 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, such company shall not be liable for the injury, provided such company furnished room inside its passenger cars sufficient for the accommodation of its passengers." The jury found that there was posted inside the car such a notice, and that there were at the time seats sufficient to accommodate the passengers; but it also found that Mrs. Chollette did not go upon the platform when the train was in motion, nor was there any finding that she remained upon the platform voluntarily while the car was in motion, or that her injury was due to her remaining on the platform under such circumstances. There were,...