42 Neb. 105 | Neb. | 1894
The grounds of the Omaha Fair & Exposition Association lay near a railroad belonging to the Omaha Belt Railway Company, and operated by the Missouri Pacific Railway Company. A fire started between the tracks of the railroad and the fair grounds, destroying a portion of the fence surrounding the latter and certain buildings. The Fair & Exposition Association held insurance on this property in a number of companies. After adjustment and payment of the loss, the Fair & Exposition Association and the insurance companies joined in an action against the Missouri Pacific Railway Company to recover from that company on account of said loss, alleging that the fire had been negligently set out by the railroad company. The negligence specifically alleged was the defective construction of an engine and the permitting of dry grass and weeds and old ties to accumulate on the right of way. Certain other persons, who owned property situated upon the fair grounds which was destroyed by the same fire, brought separate actions to recover for the same loss. Some of these
In a large class of cases the rule is asserted that a land owner cannot be charged with contributory negligence where he uses his property in the usual course for the purpose for which it is adapted. Patton v. St. Louis & S. F. R. Co., 87 Mo., 117, Kalbfleisch v. Long Island R. Co., 102 N. Y., 520, and Philadelphia & R. R. Co. v. Hendrickson, 80 Pa. St., 182, are illustrations of this'rule. In a larger number of eases, however, it has been held that facts somewhat similar to those charged against the plaintiffs would constitute evidence of contributory negligence which should be submitted to the jury. (Kansas P. R. Co. v. Brady, 17 Kan., 380; Kansas City, F. S. & G. R. Co. v. Owen, 25 Kan., 419; Missouri P. R. Co. v. Cornell, 30 Kan., 35; Garrett v. Chicago & N. W. R. Co., 36 Ia., 121; Slossen v. Burlington, C. R. & N. R. Co., 60 Ia., 215; Bryant v. Central V. R. Co., 56 Vt., 710; Karsen v. Milwaukee & St. P. R. Co., 29 Minn., 12; Illinois C. R. Co. v. Nunn, 51 Ill., 78; Chicago & N. W. R. Co. v. Simonson, 54 Ill., 504.)
In Burlington & M. R. Co. v. Westover, 4 Neb., 268, it was held that the failure of the plaintiff to plow fire-breaks
The foregoing discussion should properly be restricted to the principal case in which the Fair & Exposition Association was a plaintiff. The insurance companies joining as plaintiffs in that case had only the rights acquired by what in insurance parlance is termed “subrogation.” They only succeeded pro tanto to the rights of the fair association, and all that has been said properly applies to their case. It will be recalled from the statement that there were five other cases on behalf of owners of property on the grounds, and companies insuring such other property. The other plaintiffs had nothing to do with the acts complained of as constituting contributory negligence, and there was no evidence at all tending to show contributory negligence on the part of the plaintiffs in these other cases; but by agreement of the parties the cases were all tried together and upon the same evidence. As already stated, the parties stipulated that only one motion for a new trial should be filed, which was done. They also stipulated that for the purpose of prosecuting a petition in error the cases should be consolidated and heard in the supreme court on one petition in error and one record. The doctrine is well settled that where two or more plaintiffs or defendants join in a motion for a new trial, if the verdict is good against one, the motion must be overruled as to all. (Scott v. Chope, 33 Neb., 41; McDonald v. Bowman, 40 Neb., 266.) It has also been held that where several join in a petition in error, if the judgment attacked was good against one, it must be affirmed as to all. (Gordon v. Little, 41 Neb., 250.) The writer, while considering these rules firmly based on authority, has heretofore regarded them as purely technical,
Judgment affirmed.