Union Pacific Railroad Company v. Connolly

• Decision Date: 04 October 1906
• Docket Number: 14,205
• Citation: 109 N.W. 368,77 Neb. 254
• Parties: UNION PACIFIC RAILROAD COMPANY v. JOHN T. CONNOLLY
• Court: Nebraska Supreme Court

109 N.W. 368

77 Neb. 254

UNION PACIFIC RAILROAD COMPANY v. JOHN T. CONNOLLY

No. 14,205

Supreme Court of Nebraska

October 4, 1906

ERROR to the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

John N Baldwin and Edson Rich, for plaintiff in error.

T. J Mahoney and J. A. C. Kennedy, contra.

ALBERT, C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

On the 11th day of August, 1902, John T. Connolly was struck and run over by a train, or part of a train, of freight cars operated by the Union Pacific Railroad Company, while attempting to cross the tracks of said company at South Omaha. One foot was entirely cut off in the accident, and both legs were so mangled as to necessitate their amputation about five inches below the knee. He brought suit against the railroad company and Elmer E. Fair, the engineer of the train which inflicted the injury, for damages resulting therefrom, charging that such injuries were occasioned by the negligent operation of the train and the defendant's road at the place where the accident occurred. The plaintiff alleges in his petition that he was struck by the train while crossing the tracks on a crossing which at the time was, and for many years had been, in common use as a public crossing. The negligence charged against both defendants is that the train in question was backed upon and over this crossing without any warning of its approach by the ringing of the bell or sounding of the whistle. The charges of negligence against the defendant company alone are: (1) That the train was backed upon and over the crossing without displaying any light at the end of the train approaching the crossing; (2) that no employee was stationed at the end of such car to give warning of the approach of the train; (3) that it had no flagman or watchman stationed at the crossing. The defendant company filed a petition and bond for the removal of the cause to the federal court on the ground of diverse citizenship, claiming that Fair had been made a party defendant for the sole purpose of evading the jurisdiction of that court. The cause was removed but upon plaintiff's motion was remanded to the state court. The defendants answered separately, denying the charges of negligence, and alleging contributory negligence. The cause has been tried four times in the district court. At the second trial, and after the jury had deliberated for some time, they were brought into court and asked whether they had agreed upon a verdict. Fair's attorney was not present at the time. The foreman answered that they had agreed as to the defendant Fair, but not as to the defendant company. They were then asked as to the possibility of their reaching an agreement upon further deliberation. They indicated that there was none. Thereupon, the presiding judge remarked: "I think I shall have to discharge you." The attorney for the defendant company then called the attention of the court to the statement of the foreman that they had agreed as to the defendant Fair, but the court expressed a doubt as to its right to receive a verdict as to one of the defendants without a verdict as to both, and asked counsel if they had anything to suggest. Receiving no response, the court discharged the jury. Afterwards, the foreman of the jury delivered a package of papers containing, among other things, a formal verdict in favor of the defendant Fair to the bailiff, who in turn delivered it to the court in the absence of counsel. They came into court shortly afterwards and their attention was called to this verdict. Plaintiff objected to receiving it as a verdict on the grounds that it had not been presented until after the jury had been discharged; that it had not been presented at such time or in such a way as to afford the usual opportunities for determining whether it was the verdict of the jury, and that it was not the verdict of the jury. The record does not disclose what ruling was made on plaintiff's objection to receiving this verdict, nor what action was taken thereon by the court, but, as Fair was a party to the subsequent litigation in the district court, we infer that the objection was sustained and that the court refused to receive the verdict. The defendant company then filed a second petition and bond for the removal of the cause to the federal court on the ground of diverse citizenship. The court overruled this petition and retained the cause for trial. At the opening of the last trial the defendants objected to the jurisdiction of the district court on the ground that the cause was one properly removable to the federal court, and that the jurisdiction of the state court had been ousted by the filing of the second petition and bond for removal. This objection was overruled. At the close of the testimony adduced by the plaintiff in making his case a motion was made by the defendant company for a verdict, which was overruled. Testimony on behalf of the defendants was then offered and received. At the close of the trial the defendant company again asked for an instruction directing a verdict in its favor, which was denied. The trial resulted in a general verdict for the defendant Fair, and a verdict and judgment against the defendant company for $ 27,500. The company brings error.

The first three assignments of error are so intimately related that they should be considered together. They are based on the following rulings: (1) The refusal of the court to receive a verdict as to the defendant Fair at the second trial. (2) Overruling the defendant company's second petition for removal to the federal court. (3) Overruling the objections made to the jurisdiction of the court at the last trial. It will be recalled that the cause had been once removed to the federal court and by that court remanded to the state court for trial. The second petition for removal on its face contains nothing that was not presented by the first petition. It is not claimed that the defendant company was entitled to a second order of removal on the same state of facts which had been held insufficient by the federal court when the cause was removed on the first petition, but that the defendant Fair was no longer a party to the controversy after the so-called verdict on the second trial, and, consequently, when the second petition for removal was filed, the controversy was solely between the plaintiff, a citizen of Nebraska, and the defendant company a citizen of the state of Utah. In short, the second petition for removal was presented on the theory that Fair was eliminated from the controversy by the so-called verdict in his favor at the second trial. There is more than one reason why this theory cannot be sustained. In the first place, no verdict was rendered at that trial. A verdict is "the unanimous decision made by a jury and reported to the court on the matters lawfully submitted to them in the course of a trial of a cause." Bouvier, Law Dictionary. Section 291 of the code provides: "The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict." Section 290 is as follows: "When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk asking each juror if it is his verdict. If anyone answers in the negative, the jury must be sent out for further deliberation." At the second trial, when the jury were brought into court and asked if they had agreed upon a verdict, the foreman merely said they had agreed as to the defendant Fair, but not as to the defendant company. No decision as to any matter lawfully submitted to them was reported to the court at that time; they merely reported that they had agreed upon a decision. It does not appear that at that time their decision had been reduced to writing or signed by the foreman. Certainly no verdict was announced, nor was any opportunity given to test the unanimity of their finding, and they were discharged without any one but themselves knowing the nature of their verdict with respect to Fair. It may be that the trial court at that time should have called for the verdict as to Fair, and that if it was in due form it should have been received, notwithstanding the inability of the jury to agree as to the other defendant. But, although the court openly manifested its intention not to call for or receive a verdict as to Fair and to discharge the jury, no protest or objection was made by any party to the record, nor was any exception taken to the rulings of the court in that regard. On the contrary, when the court asked counsel for suggestions as to the course to be pursued in the circumstances, its request met with no response, although the attorney for the party now complaining was present in court at the time. The error, then, if any, is one of which the defendant company cannot now be heard to complain. As to the so-called verdict subsequently delivered to the bailiff and by him delivered to the court, it was delivered to the court after the jury had been discharged. It was delivered at a time and under such circumstances as made it impossible to apply the tests prescribed by sections 290, 291, supra, to determine whether it was in fact the unanimous decision of the jury on any matter lawfully submitted to them, and the court properly ignored it. It might be said, in passing, that we find no exception to any ruling of the court in that behalf. It would follow, then, that as no verdict in favor of Fair had been rendered when the second petition for removal was filed and submitted, the theory upon which that petition was...