114 Neb. 556 | Neb. | 1926
This is an action to recover damages for a day’s delay in transporting by rail 78 steers in three freight cars from Bingham by way of Bridgeport, a railroad junction, to Minatare, and for failure to feed and otherwise properly care for the animals in transit. Plaintiff loaded and billed
The sufficiency of the evidence to sustain the verdict is challenged on the ground there was no competent proof that the animals were In good condition when loaded; or that the carrier was negligent in detaining the shipment at Bridgeport; or that there was a failure to feed, water and otherwise care for the stock in transit; or that the injuries to the animals, if any, were not due to the storm; or that there were substantial damages in an ascertainable amount based on the difference between the market value of the steers when delivered and the market value as they should have been, delivered a day earlier.
Disregarding for the moment the competency of testimony adduced by plaintiff, there is evidence from which the following facts and conclusions are fairly inferable: The cattle were in good condition when loaded. The shipment arrived at Bridgeport February 27, 1919, and in the regular course of transportation should have been attached to a local freight train and taken to Minatare láter the same day. The shipment missed the local freight through the negligence of the carrier. The storm did not prevent the usual trip by the local freight February 27, .1919, and was not
- The verdict, nevertheless, cannot be permitted to stand unless a telephonic communication from the yardmaster’s office at Bridgeport to plaintiff at Minatare was properly admitted in evidence over the objection of defendants. Without this telephonic communication the evidence failed to show that the steers were not unloaded, fed and watered at Bridgeport — elements inhering in the verdict for damages. There is testimony by plaintiff tending to prove that on the morning of February 28, 1919, he called the yardmaster at Bridgeport by telephone, that there was a response to the call and that the speaker at the carrier’s office said he was the yardmaster. What followed was told by plaintiff on the witness-stand as follows:
“I asked him why they didn’t get my cattle out the day before, and he said, ‘They missed them there,’ and he said, ‘We were going to send them out last night but we didn’t have an engine available, but’we will get them out today;’ I said, ‘Did you feed them today?’ He said, ‘No; we didn’t. They aré still in the cars.’ ”
The objection to this testimony is that there was nothing to identify the yardmaster as the person talking, his voice
A careful annotator who made a critical analysis of precedents recently said:
“By the weight of authority evidence is admissible as to conversations over the telephone, where the witness has called for a designated person at his place of business and the one answering the telephone and carrying on the conversation claims to be the person called for. This rule is based upon the apparent necessity, in view of the constant*560 use of telephones, of holding that where a telephone conversation is carried on in the ordinary and usual manner, and is had in the usual way, evidence of the conversation must be admissible, the weight attached thereto to be a matter for the consideration of the jury in view of all the surrounding circumstances, including the admissions or denials of the other party to the conversation.” L. R. A. 1918 D, 720, and cases cited in note.
The syllabus in Bernstein v. State, 106 Neb. 337, without an examination of the opinion, 'is susceptible to misapplication- as a general rule that a telephonic communication is inadmissible unless the voice of the person talking is recognized by the witness, and for that reason is overruled. The testimony there under consideration, however, was erroneously admitted and the judgment, therefore, was properly reversed.
With the principal question decided adversely to defendants, there is no error prejudicial to them in the record.
Affirmed.