128 Neb. 860 | Neb. | 1935
The administrator of the estate of John H. Behr, deceased, brought this action for damages for wrongful death against the executrix of the estate of Hayes E. Duling, deceased, the Chicago & Northwestern Railway Company and Ed Roeder. At the beginning of the trial, prior to the introduction of any evidence, the trial judge sustained an objection to the introduction of testimony and dismissed the action as to the executrix of the estate of Duling for that the court did not have jurisdiction
This case arose out of an accident in which the automobile in which Behr and Duling were riding was hit by a Chicago & Northwestern Railway company train of which Roeder was the engineer. As a result of the accident, both Behr and Duling died. This action was filed in Hall county. No one of the defendants resided there or were served with process therein. Roeder was served in Dodge county, Duling in Lancaster county, and the Chicago & Northwestern Railway Company in Hall county by a summons upon the agent of the Union Pacific Railroad Company. A special appearance of the Chicago & Northwestern Railway Company was filed for that the corporate name was incorrect and that the pretended service was not upon its agent and that it did not operate or transact business in Hall county. This special appearance was sustained and plaintiff given leave to amend his petition by interlineation. Thereupon a summons was sent to Adams county and served on an agent of the Chicago & Northwestern Railway Company there. After-wards the defendants Roeder, the engineer of the train, and the Chicago & Northwestern Railway Company filed answer without objection to the jurisdiction of the court over them.
The plaintiff asserts that the court erred in dismissing the case as to Duling. The previous recital of the procedural steps reveals that the trial court did not have jurisdiction over any defendant in this case unless there was a waiver of the objection by a general appearance.
But the defendant Duling filed a special appearance objecting to the jurisdiction of the court, which was overruled. This is an action which the law requires must be brought in the county in which the defendant, or some one of the defendants, resides or may be summoned. Since no defendant resided in Hall county or could be summoned therein, the special appearance should have been sustained. But the plaintiff insists that the pleading of Duling denominated “special appearance” did not limit itself to the particular question and therefore waived the objection. It is well established in this jurisdiction that “An appearance is special when its sole purpose is to question the jurisdiction of the court. It is general if the party appearing invokes the power of the court on any question other than that of jurisdiction.” South Omaha Nat. Bank v. Farmers & Merchants Nat. Bank, 45 Neb. 29. Many cases are found in our official reports to the same effect. A recent case held that an appearance by any form of application invoking the court’s power except upon the question of jurisdiction is a general appearance. Troyer Furniture Co. v. Orchard & Wilhelm Co., 121 Neb. 301.
An examination of the objection to the jurisdiction in this case to determine whether the appearance was special or general discloses that the appearance was special. This defendant alleged thirteen reasons for the dismissal because the court did not have jurisdiction over the person of the defendant. No affirmative relief is sought. Among the thirteen paragraphs are three contending that there is no connection between the cause of action alleged against this defendant and the other two defendants. Three, other paragraphs contend that there is no joint liability and none is alleged between this defendant and the other defendants.
The Code provides: “Every other action (the case at bar-
The defendant Duling filed an answer preserving the objection to the jurisdiction. Subsequently in open court an oral request was made to file an amended answer. It is said that this oral request did not preserve the objection to the jurisdiction. Plaintiff’s position in this respect is untenable, because the court required the attorney for Duling to state specifically the amendments desired. The answer was so amended and that part preserving the objection to the jurisdiction was retained in the amended answer.
Lastly, the plaintiff contends that the plaintiff’s objection to the introduction of testimony was a waiver to the objection to jurisdiction. The objection was for the reason that the court was without jurisdiction. It was sustained. Another reason was stated in the oral objection to the introduction that the petition failed to state facts
At the close of the testimony, the court sustained the motion of the defendants, Chicago & Northwestern Railway Company and Ed Roeder, to direct a verdict for the defendants for the reason that the evidence is not sufficient to sustain any of the charges of negligence and not sufficient to sustain a recovery in favor of the plaintiff. In sustaining this motion, the court made the following statement : “I am dismissing the action' on the ground that you haven’t proved any negligence on the part of the defendants and there is no evidence to show what relationship John H. Behr, the deceased, bore to Hayes E. Duling, deceased, in riding with him in the automobile in which both were killed.” This requires an examination of the pleadings and the evidence. The petition alleges that the defendants, Chicago & Northwestern Railway Company and Ed Roeder, were negligent in operating a railway motor car at an excessive speed without furnishing warnings, signs, or without taking due precautions. The plaintiff insists that the Chicago & Northwestern Railway
There is no evidence that the railway motor car was operated at an excessive rate of speed. At the time of trial, the petition did not allege that the motor train failed to give warning of its approach. More than a month thereafter, the plaintiff requested leave to amend his peti
The facts in this case may be simply stated. Behr and Duling were driving an automobile east on the highway toward this unobstructed railroad crossing at a speed of 50 miles an hour. They did not slacken their speed and were hit by a motor train. As stated by the trial court, the evidence does not establish the relationship of the parties. If -the deceased was an invited guest, the standard of duty is the same as the driver’s, although the duty is fulfilled in a different way. There is no evidence that he performed this duty, and a failure to perform it would constitute negligence. Glick v. Poska, 122 Neb. 102; Tomjack v. Chicago & N. W. R. Co., 116 Neb. 413.
But if he were not an invited guest but was engaged in a joint enterprise the plaintiff cannot recover. In Johnston v. Delano, 100 Neb. 192, this court held: “When two persons of equal authority are riding in a vehicle which is driven upon a railroad track in front of an approaching train in full unobstructed view, it is immaterial which of the parties is driving, since, if either party looked and listened, he must have seen the approaching train.”
Driving an automobile upon railroad tracks where there is an unobstructed view in front of a train without looking and listening is more than slight negligence and sufficient to defeat a recovery. This rule has been stated so often that it is unnecessary to repeat it here. The evidence is not sufficient to establish that the negligence of defendants, Roeder and the Chicago & Northwestern Rail
Affirmed.