51 Neb. 167 | Neb. | 1897
. John and Eman Spirt commenced separate actions against the Chicago, Burlington & Quincy Railroad Company to recover damages alleged to have accrued in their favor on account of their unlawful and wrongful expulsion, prior to arrival at their destination, from one of the trains of the company, upon which they were passengers. The alleged causes of action had their origin in the same state of facts; hence after issues joined the causes were, on motion presented therefor, consolidated, the evidence introduced but once and the one jury returned a verdict thereon in each case favorable to plaintiffs. The company has prosecuted error proceedings to this court.
Before answer there was a motion interposed in behalf of the company, in each case, to strike out of the petitions certain portions thereof quoted in the motion. The refusal of the trial court to act in accordance with these
After the issues had been joined and the cases called for trial, at the inception of the introduction of evidence on behalf of defendants in error, counsel for the plaintiff in error objected to the reception of any evidence, on the* ground that the facts stated in the. petitions were insufficient to constitute a cause of action. This was overruled; and the action of the court in this regard is assigned and urged as error. Where, as in this case, the objection to the sufficiency of a petition, that it does not state a cause of action, is not interposed until on the trial, the pleading will be liberally construed, and if possible sustained. (Roberts v. Taylor, 19 Neb., 184.) Read and interpreted in accordance with the foregoing rule, the petitions herein were sufficient and not open to the criticism urged against them, viz., that it did not appear that defendants in error were at the time rightfully on the train from which they alleged they were ejected. The petitions disclosed that the defendants in error purchased tickets, which entitled them to a safe passage on or over plaintiff in error’s road from a named starting point to a designated destination, and that they became passengers on said railroad accordingly, and took seats in the cars of plaintiff in error, to be carried to their journey’s end, and were carried directly toward their destination until a station called Benkleman, on the line of road, was reached, where they were unlawfully and forcibly ejected from the train or car in which they were riding. The foregoing is, in substance and in short, a statement of the portions of the pleadings attacked, and the averments were, we think,
The evidence discloses that the defendants in error were citizens and residents of Wilber, in Saline county, this state, that at the time of the trip, of which some of the incidents and circumstances form the basis of these suits, certain matters of business rendered it necessary that they go to Haigler, a station on the line of road of the company, plaintiff in error, to be there met by someone, and be taken from there twenty-five or thirty miles across the prairie to meet a party or parties, with whom defendants in error had certain affairs to transact, or with whom they were to consult. The brothers called, according to the evidence of the company’s agent at Wilber, on him, separately, a short time prior to the projected travel, and made certain inquiries in regard to the arrangement of the running of the trains by which they could reach their desired destination, and were furnished with the information. On Saturday, June 10, 1893, they boarded a train of plaintiff in error at Wilber, paying their fare to Wymore to the conductor on the train; at the last mentioned station they purchased tickets which entitled them respectively to a continuous passage to Haigler, and entered the train which was then standing at Wymore, and which was the proper one for the portion of their journey between Wymore and Oxford Junction, and it contained a chair car and a “Pullman,” which were destined to run through to Denver, Colorado, the other cars of this train going no farther than the junction at Oxford. The Pullman and chair car, to which we have just referred, were to be and were attached to a “local” train which passed through Oxford Junction on its run from Chicago to Denver, and hauled by the local westward, as far as McCook, where they were to be and were detached from the local and attached to another train, a through passenger train running between Chicago and Denver, to be taken to the latter place. This was known as the fast train, or flyer, and made but a few stops at any of the stations along the
On the particular date of the events which are of the subject-matters of this case the through or fast Denver train was, to use a general expression, behind time, and did not reach McCook until later than it was scheduled to be there, and the local train left McCook prior to and ahead of the through train, and continued in advance of it, so far as we are informed by the evidence herein of the relative movements of the two trains. The conductor who took charge of the “flyer” train at McCook went through the cars and made, as is usual, an examination and disposition of the tickets of the passengers, and discovered the defendants in error and that they had tickets for Haigler as their stopping place, and immediately informed them that the train was not scheduled to stop there and would not; that they must leave the train at Benkleman, the last and nearest station east of Haigler at which the train would halt, or that they could remain on until it reached a station in Colorado, beyond or west of Haigler, where the train would stop, the last conditional upon the payment of the fare from Haigler to the station beyond. They refused either alternative and demanded that the train be stopped at Haigler and they be allowed to leave it; but this last they were informed could not be. When the train reached Benkleman a stop was made, and the conductor informed the defendants in error that he could not halt the train at Haigler, that they must get off where they 'then were or pay the fare from Haigler to the station beyond, at which the train
Counsel for the company, in arguments in relation to the measure of damages which should have been adopted, and in the enforcement of their complaint that the proper .
It is urged on behalf of the plaintiff in error that it devolves on a prospective passenger to inform himself whether the train on which he proposes to take passage will stop at the station to which he is bound, and that it was the duty of defendants in error to ascertain and know whether they were aboard of the right train. Be this rule as it may, it could have no application here. These parties took the right train and proceeded on their journey until they were directed, and properly so, by the employe of the company whose duty it was to give such order, to go into a designated car of the train, which they accordingly did, and there they remained, having, as the jury determined, received no other or further orders in regard to changing to another car, though it was of the duties- of an employe, who testified and so stated, to, at a subsequent stage of their trip, inform them of a necessary change to a car which would be of the local train, which would stop at their destination. In view of these and facts of similar import, it must be said that the defendants in error were in the through or wrong car by direction or negligence of the company, and not of their own volition or want of care; hence, whatever subsequently happened to them by reason of their being in the wrong car was not of their blame; but the direct consequences, if injurious to them, must be borne or compensated by the blamable one, the company. It is said that a railroad company may make and enforce all reasonable rules and regulations for the operation of the road, including the running of trains, and that certain of them shall not stop except at such and so many of the stations on the line of road as may be designated by the company. It is also said that it was of the rules of the plaintiff in error, in force at the date herein involved, that the through
By objections to certain of the paragraphs of the charge to the jury, and the offer of an instruction with a request that it be given, which was refused, to all of which exceptions were noted, and the actions of the trial court in regard to which were duly assigned for error, the question was raised that the alleged journey of forty or fifty miles across the prairie, and the consequent exposure to inclement weather and other inconveniences and hardships, should not have been submitted to the consideration of the jury as proper elements of damages. Undoubtedly, under the rule for the measurement of damages in actions of the nature of which we have determined these to be (ex deMcto), — (for rule see 1 Sedgwick, Measure of Damages, 130, note), — it was competent to prove the trip out into the country, with its concomitant circumstances, if it and they were further shown to be necessarily and directly traceable to the ejection from the train, and directly consequent therefrom (Vosburgh v. Putney, supra; Brown v. Chicago, M. & St. P. R. Co., supra); and whether the ejection of the defendants in
There are some .complaints made of the information given to the jury in the charge of the trial court with reference to the use of force by the conductor, or employes of the company, in ejecting the defendants in error from the train, but we think the objections to the charge in this particular are without merit, «nor do we deem it necessary to comment on or discuss them at length at this time.
For the errors committed, herein indicated, the judgments must be reversed and the causes remanded.
Reversed and remanded.