Spirk v. Chi., B. & Q. R. Co.

• Decision Date: 09 February 1899
• Citation: 78 N.W. 272,57 Neb. 565
• Parties: SPIRK ET AL. v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

57 Neb. 565

78 N.W. 272

SPIRK ET AL.

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. The exclusion of evidence, if not prejudicial to the complaining party, furnishes no ground for the reversal of a judgment.

2. An assignment of error relative to giving instructions must be specific in both petition in error and motion for a new trial. If grouped in either, and not of force as to one of the number included, it is without avail as to all.

3. Whether passengers on a railway train have exercised the required care to ascertain whether they are on the right train, or in the proper car of the train, to reach their destination, is generally a question of fact to be submitted to the jury.

4. Held, that there should have been an offer of proof, to present for review the action of the trial court by which certain testimony was excluded.

5. The damages assessed were inadequate,--did not furnish compensation for the necessary loss shown.

Error to district court, Saline county; Hastings, Judge.

Actions by Eman J. Spirk and by John F. Spirk against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiffs in the sum of $6 and $5, respectively, and they bring error. Reversed.Joseph R. Webster and J. H. Grimm, for plaintiffs in error.

J. W. Deweese, F. E. Bishop, and F. I. Foss, for defendant in error.

HARRISON, C. J.

For each of the plaintiffs in error an action was instituted to recover the damages alleged to have been caused by their wrongful, unlawful, and forcible ejection, before arrival at their destination, from a train of the company, on which they were passengers. The causes of action originated in the same occurrences, and the causes were consolidated, and but one trial had. There were verdicts and judgments for the plaintiffs, which, on error to this court in behalf of the company, were reversed and the causes remanded. A second trial in the district court resulted in verdicts and judgments for the plaintiffs, but, being dissatisfied with the amounts of recovery, they now present the causes here for review. The facts were stated in a former opinion (see 51 Neb. 167, 70 N. W. 926), and we will not restate them, but, for the main facts, refer the reader of this opinion to that one.

The company was allowed to introduce what are termed in railway business “train sheets,”--the memoranda or records made by a train dispatcher of arrivals and departures of trains to and from stations. That these were admitted in evidence is the burden of one of the assignments of error. Whether the action of the court in overruling objections to the introduction of these train sheets was or was not erroneous, is without weight at this time. With the existing condition of the evidence in regard to the movements of the train on which the plaintiffs traveled at the time of the occurrences in which these suits originated, and of the train on which they should have made a part of their journey, the evidence contained in the train...