Union Pac. R. Co. v. Mertes

• Decision Date: 21 September 1892
• Citation: 52 N.W. 1099,35 Neb. 204
• Parties: UNION PAC. R. CO. v. MERTES.
• Court: Nebraska Supreme Court

35 Neb. 204

52 N.W. 1099

UNION PAC. R. CO.

v.MERTES.

Supreme Court of Nebraska.

Sept. 21, 1892.

Syllabus by the Court.

1. Under the common law, where an action is dismissed for want of prosecution, at the costs of the plaintiff, the plaintiff is required to pay such costs before prosecuting a second action for the same cause. In equity procedure, however, this rule is not enforced. A court of equity will be governed by the circumstances of each case, and, where there is a valid excuse given for the failure to pay the costs in the former suit, will not compel such payments as a condition of permitting the second to proceed. The equity rule prevails under the Code; and, while the court will not permit vexatious litigation, it will, in a proper case, excuse the nonpayment of costs in the case previously instituted.

2. If a party desires to submit his case to the jury on the evidence of the plaintiff, and asks an instruction that the jury find for the defendant, he should make his motion to that effect, without reservation. If he does not, the court may refuse to entertain it.

3. The questions of negligence were properly submitted to the jury.

4. Although a party may have negligently exposed himself to an injury, yet if the defendant, after discovering his exposed situation, inflict the injury upon him through a failure to exercise ordinary care, the plaintiff may recover damages.

Error to district court, Douglas county; HOPEWELL, Judge.

Action by John Peter Mertes against the Union Pacific Railway Company to recover for personal injuries while on the track of the said railway. Judgment for plaintiff. Defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, E. P. Smith, and Schomp & Corson, for plaintiff in error.

H. B. Holsman and Mahoney, Minahan & Smyth, for defendant in error.

MAXWELL, C. J.

The plaintiff below, in his petition, alleges, in substance, that on the 14th day of June, 1885, in Douglas county and state of Nebraska, he was injured by the defendant; that said injury was done by defendant running a locomotive engine against plaintiff, thereby fracturing four ribs and doing him other bodily injury; that on account of said injury the plaintiff is wholly and completely disabled for manual labor; that said disability is permanent; that said injury was done to the plaintiff at a point on the defendant's line of railroad, in said county and state, where said railroad is crossed and intersected by a public county road, or on said line of road near said crossing; that the said public road passes over the said railroad at the place where the locomotive of defendant struck and injured plaintiff; that the agents and servants of the defendant negligently and carelessly ran a locomotive engine against said plaintiff; that said injury to plaintiff was caused wholly by the negligence and carelessness of the agents and servants of the defendant in charge of said locomotive engine; that plaintiff was not guilty of contributory negligence; that the plaintiff had earned his living by manual labor; that his labor was worth the sum of $592 annually; that before said injury he was in good health, and able to work; that the plaintiff's age at the date of the injury was about 49 years, and that he had an expectancy of life of 21.81 years; that on account of said injury the plaintiff has suffered much pain, and had to employ a surgeon to treat said injury, which surgical aid cost the sum of $400. Wherefore, he prayed for damages in the amount of $1,999. The defendant filed an amended answer, in which it denied that plaintiff was injured in the manner or to the extent alleged in the petition; denied that the plaintiff was injured at the place alleged in said petition; denied that plaintiff was injured by being struck by defendant's locomotive engine at a point on its road where it crosses a public road; denied that its agents and servants in charge of said locomotive engine were guilty of carelessness and negligence; denied that its agents negligently and carelessly ran said locomotive engine against said plaintiff; denied that plaintiff was injured in any manner or to any extent by reason of any fault or negligence on the part of the defendant, its servants or employes. That if plaintiff was injured as alleged in the petition, or to any extent, it was through his own fault and carelessness, contributing thereto, and not through any fault or carelessness attributable to this defendant. In an action in the United States district court, then pending, wherein the plaintiff below was plaintiff and the defendant below was defendant, and wherein the same cause of action set up and recited in plaintiff's petition was then in said court pending for trial, and in which said action the said plaintiff had complained of and against said defendant of and concerning the very same alleged wrong and injury in the petition herein alleged and mentioned, the court made an order as follows: “John Peter Mertes v. Union Pacific Ry. Co. Dismissal. This cause coming on for hearing upon the regular call of the docket, and the plaintiff failing to appear, upon motion of the defendant, by A. J. Poppleton, its attorney, it is ordered by the court that this cause be, and the same is hereby, dismissed for the want of prosecution, at the cost of plaintiff and that execution issue therefor.” That afterwards, on the 8th day of October, 1890, the plaintiff below filed a motion in the district court of Douglas county, based on the records of the proceedings in the United States circuit court, by which motion the defendant prayed the court to arrest the action, and asked for judgment of nonsuit against the plaintiff on account of said judgment in the United States circuit court, and because the plaintiff had not paid said costs. Thereupon the plaintiff offered and read in evidence, in resistance of defendant's motion, his affidavit of merits, and admitting therein that he had not paid the costs adjudged against him in the United States circuit court, and averring that he had not paid the same on account of his poverty, and inability to earn anything on account of the injury set forth in the petition, and that the only thing of value that he owned was his cause of action against the company, for personal injury, and that he could not obey any order requiring him to pay costs in the United States circuit court, on account of his poverty.

The motion to dismiss was overruled, and this is the first error complained of. Under the common law, where an action is dismissed without prejudice, at the costs of the plaintiff, he cannot maintain a second action until he has paid the judgment for costs in the first action, (Weston v. Withers, 2 Term R. 511;) and the plea of poverty is no excuse, (Id.) The rule seems to have originated in ejectment cases, which under the common law could be brought without limit. In the case cited, however, the action was for unlawful distress of property, and seems to have been attended with circumstances of peculiar hardship, yet the court applied the rule in ejectment cases. The common-law rule has been recognized in many cases in this country. Perkins v. Hinman, 19 Johns. 237;Livingston v. Edwards, 1 Cow. 138;Allen v. Carpenter, 3 Cow. 22;Jackson v. Schauber, 4 Wend. 216;Kentish v. Tatham, 6 Hill, 372;Felt v. Amidon, 48 Wis. 66, 3 N. W. Rep. 825. In Stebbins v. Grant, 19 Johns. 196, the court recognized the common-law rule, but refused to apply it in suits in equity. A court of equity will be governed by the circumstances of each case; and, where there is a valid excuse given for the failure to pay the costs incurred in the former action, it will not compel such payment as a condition of permitting the second to proceed. Under the Code, there is no doubt the equity rule prevails; and, while the court will not permit vexatious litigation, it will, in a proper case, excuse the nonpayment of costs in the case previously instituted. The common-law procedure is for a rule to show cause, and...