McClary v. Sioux City & Pacific Railroad

3 Neb. 44 | Neb. | 1873

Maswell, J.

The petition in this cause states that the defendants “are a corporation operating and running a certain railroad in the state of Nebraska, between the city of Eremont, in the county of Dodge, to some point in the county of Cuming, at or near the town of West Point, in said bounty, and that said defendant was a common carrier of passengers in cars over and upon said railroad, for hire .and reward; and thereupon the said plaintiff on the fifth day of July, 1871, at the special instance and request of the said defendant, became and was a passenger on the said railroad of the said defendant aforesaid, and in the cars thereof, to be safely carried from Eremont, Nebraska, to West Point, for a certain hire and reward paid to the said defendant in that behalf, and the said plaintiff was then received by the said defendant in the cars and on the road aforesaid as such passenger, to be carried thereby as aforesaid; yet the defendant not regarding its duties in that behalf, did, by its agents, negligently conduct the running of its said train of cars over said railroad, in which, plaintiff was a passenger, out of the regular, usual, and advertised time for running such cars between the places aforesaid, and did run their said cars, in which plaintiff was a passenger, out of such regular, usual, and advertised time, and were at the time of committing the injuries hereinafter complained of, running about three-fourths of an hour behind the regular, usual and advertised time of the running of the same, and were at a point on said railroad at the time of committing the injuries ^herein complained of, several miles away from the place where such cars would have been at the time, had they been running the same on the ' regular, usual, and advertised time of running said cars, and because thereof were suddenly and violently thrown from the track by a sudden gust of wind which crossed that part of the track, but not the part of the track where the said cars would have been if the train had been running on its usual, ordinary, and advertised time, upsetting the car in which plaintiff was 'seated, thereby greatly injuring plaintiff by her being badly cut and bruised, and became sick, lame, and unable to walk, and was wholly unable to attend to the transaction of her necessary business to the present time, to her damage in the sum of ten thousand dollars.”

The defendant demurred to the petition on the ground:

“First. That there is no law requiring defendant to run its cars on its usual and advertised time.

Second. It is not shown by the petition that defendant’s train at the time of the injury complained of was behind its usual and advertised time, through any negligence of defendant or its servants or agents.

Third. The damages claimed are remote and consequential and not the probable or natural consequences to be apprehended from the negligence alleged by plaintiff.”

The code provides that the defendant may demur to the petition only when it appears upon its face,

First. That the court had no jurisdiction.

Second. That the plaintiff has not legal capacity to sue.

Third. That there is another action pending between the same parties for the same cause.

Fourth. That there is a defect of parties plaintiff or defendant.

Fifth. That several causes of action are improperly joined.

Sixth. That the petition does not state facts sufficient to constitute a cause of action.

The objections stated in the demurrer not being any of those provided by the code, can only be considered as a general demurrer “ that the petition does not state facts sufficient to constitute a cause of action.” General Statutes, Sec. 95, 540.

The demurrer was sustained by the district court, and judgment of dismissal entered, to review which, the cause is now brought here.

The general rule is, that even a wrong doer is liable only for the proximate consequences of his act or default, and this rule is certainly applicable to cases of mére negligence.

Injuries caused only remotely by reason of negligence, cannot be charged to the party in fault.

It is contended in this instance that while the injury was occasioned by the act of God, yet had the train been funning on time, the accident would not have occurred, therefore the negligence of the defendant, in permitting the train to be three-fourths of an hour behind time, is the proximate cause of the accident.

Common carriers of goods are not only responsible for anyrtoss or injury to the goods they carry, but the law raises an absolute and conclusive presumption of negligence whenever the loss occurs from any other cause than the act of God or the public enemy.

In the case of Forward v. Pittard, 1 Term, 27, in which the plaintiff’s goods while in possession of the defendant as a common carrier, were consumed by fire, it was found that the accident happened without any actual negligence in the defendant, but that the fire was not occasioned by lightning. The court held that “a carrier is in the nature of an insurer. It is laid down that he is liable for every accident except by the act of God, or the king’s enemies.”

To prevent litigation the law presumes against the carrier unless he shows it was done by the king’s enemies, or by such an act of God as could not happen by the intervention of man.

And it is held that if the carrier wrongfully delay the transportation of goods, and because of the delay they are injured by a flood, the carrier would be liable. Lowe v. Moss, 12 Ill. 477. Reed v. Spaulding, 30 New York 630.

This is the law as to common carriers of goods, and it is contended by the plaintiff that the same rule applies to common carriers of passengers. As a rule the liability. of the common carrier of goods does not depend ápon Ms negligence, because be insures tbe owners of all tbe goods be carries against all loss or injury, not caused by the act of God or tbe public enemy. Tbe exception to tbis rule in tbe case of tbe carrier of passengers is, that be is liable only where tbe injury has arisen from bis own negligence; be does not warrant tbe safety of passengers, but as far as human care and foresight go, be will provide for their safe conveyance; but if be is in tbe least degree negligent be is liable, because- tbe law requires him to do all that care and skill can do for tbe safety of bis passengers. Tbe only negligence alleged in tbe petition is, that tbe train was three-fourths of an hour behind tbe regular and advertised time, and it is contended by plaintiff that that of itself is such an act of negligence as entitles tbe plaintiff to recover. While it was tbe duty of tbe defendant to have adopted such rules and regulations for tbe running of their trains, as would insure tbe safety of their passengers, and having adopted them, must conform thereto as far as possible, or be responsible for tbe consequences resulting therefrom, yet they are responsible only for such damages as are tbe natural and direct result of- tbe act complained of. Redfield on Railways, 2d Edition, Section 154. Dunton v. Great Northern Railway, 34 Eng. Law and Equity, 154.

In tbis case tbe injury complained of, not being tbe natural result of tbe train being behind time, is too remote to entitle tbe plaintiff to recover*. All tbe justices concurring tbe judgment of tbe district court'is affirmed.

Judgment affirmed.