Smith v. Sioux City & Pacific Railroad Co.
| Decision Date | 29 May 1884 |
| Citation | 19 N.W. 638,15 Neb. 583 |
| Parties | WILLIAM G. SMITH, PLAINTIFF IN ERROR, v. THE SIOUX CITY & PACIFIC RAILROAD COMPANY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Madison county. Tried below before BARNES, J.
REVERSED AND REMANDED.
Wigton & Whitham and Robertson & Campbell, for plaintiff in error cited: Lewis v. Watrus, 7 Neb. 477. Byrd v Blessing 11 Ohio St. 362. Stockstill v Railroad, 24 Id., 86. Way v. R. R., 35 Iowa 585. Ellis v. Ohio 4 Ohio St. 646.
Joy, Wright & Hudson, for defendant in error, cited: B. & M. R. R. Co. v. Wendt, 12 Neb. 76. Reynolds v. B. & M. R. R. Co., 11 Id., 186. Manzy v. Hardy, 13 Id., 36. Bothwell v. R. R., 13 N. W. Rep., 78. Gilman v. R. R., 17 Id., 520.
This action was brought in the district court of Madison county by the plaintiff in error against the defendant in error for damages resulting to the plaintiff in error from personal injuries received by reason of the negligence of the agent and employe of the defendant in error.
On the trial a jury was impaneled, the plaintiff introduced his testimony and rested. The defendant thereupon filed a motion to dismiss the cause on the grounds:
1st. That the evidence introduced by plaintiff does not show any negligence on the part of defendant, its servants, agents, or employes.
2d. That the evidence of plaintiff does not show any cause of action against the defendant.
3d. That no negligence has been shown to warrant or authorize any recovery in this action.
This motion was sustained, the cause dismissed, and the jury discharged.
The question presented for decision is, whether the court had the authority to dismiss the cause in this summary way.
Section 430 of the civil code provides that an action may be dismissed without prejudice to a future action, by the court, where the plaintiff fails to appear on the trial, or for want of necessary parties, or on the application of some of the defendants where there are others whom the plaintiff fails to prosecute with diligence, or for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases upon the trial of the action the decision must be upon the merits. We know of no other provision of the code authorizing the court to dismiss an action than the one above referred to, and from this it is evident it was not the intention of the legislature to give to the courts any other or greater authority than is reasonably to be inferred from the language used. We are greatly strengthened in this belief by reference to the latter clause of the section, which declares expressly that in all other cases upon the trial of the action the decision must be upon the merits.
In sustaining this motion we think the court erred.
After the evidence had been given to the jury by the plaintiff tending to maintain the issue on his part, it was error in the court to dismiss the case and discharge the jury without a verdict. Byrd v. Blessing, 11 Ohio St. 362.
The next question arising in the case is, whether or not the error was to the prejudice of the plaintiff. If not, the judgment of the district court will not be reversed.
The action is brought upon the theory that the plaintiff was employed by the defendant and placed under a superior who held to plaintiff the relation of vice-principal. That this superior, although a servant of the defendant, was, so far as this plaintiff was concerned, the employer, authorized to hire and discharge other employes at his own pleasure and to exercise authority over their movements.
The questions growing out of this relation being now before the court in another cause will not be further discussed here.
By an examination of the testimony we think the evidence tended to sustain the plaintiff's theory of the case, and that it should have been submitted to the jury with the proper instructions to guide them in their delib...
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