45 Neb. 307 | Neb. | 1895
This is a petition in error and presents for review a judgment of the district court for Burt county. The cause of action alleged was the negligence of the defendant therein in furnishing to the plaintiff for the shipment of •cattle a certain car which was dangerous and unfit for use by reason of the broken and unsafe condition of one of the •doors thereof, resulting in the breaking of a leg of one of .plaintiff’s steers. Further reference to the pleadings will not be required, since the errors alleged do not involve the issues thereby presented.
The first assignment of the petition in error is that the verdict is not sustained by sufficient evidence. The undisputed evidence is that the plaintiff, on the 27th day of June, 1891, ordered of the defendant, through its agent, at Tekamah, two cars for the shipment of cattle from the station named to South Omaha, on the 29th day of the same month. On loading his cattle the day last named the plaintiff discovered that the cross-bar of one of the doors was cracked and the iron fastenings at the bottom thereof were broken so that said door could not be securely closed, but would swing outward at the bottom. The attention of the agent was directed to the condition of the car, but no effort was made to. repair it. On the arrival of the car at South Omaha it was discovered that one of the steers shipped therein had broken his leg. The question was on this evidence submitted to the jury, whether such injury was the natural and proximate result of the alleged negligence of the defendant. The circumstances of the case, including
Another assignment is that the court erred in refusing to-set aside the verdict on' account of misconduct of the plaintiff’s counsel. The facts necessary to an understanding of that contention are as follows: On September 30, 1892, Mr. Gillis, attorney for the plaintiff, addressed Mr. Hubbard, attorney for the railroad company, as follows:
“N. M. Hubbard, Omaha, Nebraska — Dear Sir: — I wish you would consent to a continuance of Deaver v. R. R. Co. I have sickness in my family, and am trying to-get out of trying any more cases this term. Will regard your consent as a great favor.
“Yours truly, H. Wade Gillis.”
To the above Mr. Hubbard responded as follows:
“ Omaha, Sept. 30, 1892.
“Hon. IT. Wade Gillis, Tekamah — My Dear Judge: —I have your favor of the 30th. Am very sorry to learn that you have sickness in your family. You are welcome to a continuance of Deaver case, and am only sorry that I cannot be of more assistance to you.
“Yours truly, N. M. Hubbard.”
Some time subsequent to the date of the above correspondence Mr. Hubbard was informed by Mr. Gillis that the district court had refused to recognize the agreement for a continuance, and that the cause had been dismissed for want of prosecution. It was then mutually agreed, according to the affidavit of Mr. Hubbard, that the latter would go to Tekamah at a subsequent term of the court and consent to a reinstatement of the cause; that he had no knowledge of its having been reinstated, and, relying upon the statement of Mr. Gillis, believed it was not on the
Reversed.