147 F. 502 | 8th Cir. | 1906
This was an action by an administrator, on behalf of the next of kin, to recover from the Omaha Water Company damages for the death of his intestate, Mrs. Annie Schamel, alleged to have been caused by the negligence of that company. The plaintiff obtained a verdict and judgment which the deh fendant seeks to have reversed because of errors said to have occurred upon the trial.
Mrs. Schamel and others were holding a committee meeting in a third-story room of a building in Omaha, called the "Patterson Block,” when h fire, originating in the basement, was quickly communicated to the upper stories through an elevator shaft, and, in an effort to escape, she leaped or dropped from a window and was killed. The court’s refusal to direct a verdict for the defendant makes it necessary to- consider whether theré was any evidence from which the jury could properly find that the fire was caused by any of the negligent acts charged against the defendant, which included that of using matches as a means of producing an artificial light in the basement of the building near the bottom of the elevator .shaft in circumstances where ordinary care required the use. of a lantern or other inclosed light. Upon this point the testimony of the plaintiff tended to show these facts: The defendant was engaged in supplying water to its patrons, including the occupants of the Patterson block. The water used by each patron was measured by a meter placed upon his premises by the defendant, and one of its employés, B. A. Karr, was required periodically to inspect these meters and to take note of the amount of water used. In the discharge of this duty Karr went to the Patterson Block, and proceeded to inspect two meters located in the basement. They were close to the bottom of the elevator shaft and at and about them was much highly combustible material, including many light wooden frames and crates covered with cheesecloth. The character of this material was known and appreciated by Karr. The basement was not well lighted, and he used matches to produce a better light while he cleared away some of the material and inspected the meters. He then left the building and in a very bi ief time
The questions presented by this evidence were properly left to the determination of the jury. The use of lighted matches in the circumstances described, considering the disastrous consequences which would almost ccrtaiidy flow from igniting so much highly combustible material in such a place, if not an act which all reasonable men in the exercise of an impartial judgment would pronounce negligent, was yet attended with such a degree of danger as to make it a question of fact for the jury, rather than of law for the court, whether the exercise of ordinary care forbade the use of matches and required the use of a lantern or other protected light, which would have been attended with no danger. The evidence indicating the almost immediate occurrence ot the fire at the place at which the matches were lighted, and tending to exclude any other reasonable theory respecting its origin, also tended persuasively to show that an ember from a burning match must have fallen in the combustible material and have caused the fire, and was, therefore, in conflict with the testimony of Karr. It was not essential that the connection between the use of the matches and the fire be traced by the testimony of an eyewitness; it could equally be shown by proof that the surrounding facts and circumstances were such that the fire must have originated in that way. It is said that the case should have been taken from the jury because Mrs. Schamcl leaped or dropped from a window and was killed when she could have descended a stairway in safety. There was evidence tending to show that when the members of the committee were apprised of the fire they were instantly confronted with the necessity of choosing between two modes of escape — one by going into the hall and then down a stairway, and the other by leaping or dropping from a window. Each was apparently attended with great peril, and was altogether uncertain of.accomplishment. The hall, the walls of which were boards covered with cheesecloth and paper, was afire and a stream of burning gas was issuing from a pipe near the head of the stairway, a leaden joint in which had been melted by the flames ascending the elevator shaft. When the door from the committee room to the hall was opened the flames at once entered the room. Some of its occupants made their way through the flames in the hall to the stairway and escaped, but not without being severely burned. Others leaped or dropped from the windows; some without loss of life and others being killed. The imminence of the peril from which Mats. Schamcl attempted to escape is illustrated by the fact that her face, neck, hands, hair, and clothing were badly burned. The rule applicable to such a state of facts is this: Where one is
Complaint is made of the court’s refusal to instruct the jury that there was no evidence of any pecuniary injury to two married daughters. The ruling was right. AA^hile the evidence upon this point was somewhat meager, it sufficiently disclosed that the deceased had been in .the habit of earning money and extending pecuniary assistance to these daughters to* justify the submission to the jury of the question whether there was a reasonable expectation that a continuance of her life would be of pecuniary benefit to them. If there was, it was cut off by the death, and was an element to be considered in the assessment of the damages. Comp. St. Neb. 1901, § 2504; Johnson v. Missouri Pacific Ry. Co., 18 Neb. 690, 700, 26 N. W. 347. One of the next of kin whose pecuniary injury the jury was charged to consider was an adopted daughter, and it is said that this was error because the adoption was void. The entire record and files in the adoption proceeding were produced in evidence, and show that it was had in the county court of Douglas county, Neb., under a statute of that state. Comp. St. 1901, §§ 6317-6322f. The objections urged against the adoption are (1) that notice of the hearing was not published for the requisite period; (2) that the required number of days did not intervene between the completion of the publication and the time fixed for the hearing; (3) that personal notice was not given to the parents, or either of them, and facts dispensing therewith were not shown; and (4) that written consent to the adoption was not given by any one authorized to consent. The first three objections are grounded upon section 6322a, which reads:
“Upon thétóling of said petition said court shall fix a time for hearing the same, which shall be at least fourteen days subsequent to the filing thereof. Said court may require notice of said hearing to be given to all parties" interested by personal service or by publication ; provided, that it shall not be necessary to give notice of said hearing to the said minor child to be adopted, unless said minor child shall be over the age of fourteen years, if notice shall be given by publication, said notice shall be published at least four consecutive, weeks in some newspaper in general circulation in said county, which publication shall be at least ten days prior to said day of hearing. Provided further, that in the event that the parents or either of them reside within the state, and personal service can be had upon them, that such service shall in all such cases, be had upon such parent or parents.”
The remaining objection to the adoption is that Prances P. Clark, who gave written consent thereto, was not shown to' possess authority under the statute to give consent. The statute makes written consent executed in a prescribed manner by a person authorized to consent a prerequisite to "the judgment of adoption and with much particularity specifies those who may consent (sections 6318, 6322), among them being:
“Any person, corporation or association that shall have had the lawful custody or control of any minor child for the period of six months last preceding, for the support of which neither parent shall without just cause or fault have contributed anything whatever during said period.”
The consent of Frances P. Clark stated, inter alia:
“That said Leone Louise Schamel is a minor of the age of about 2 years, having been born on March 15,1896, at Omaha, Neb. That your petitioner, ever since the birth of said minor, has had the exclusive and actual and lawful custody and control of said minor, and, during all of said period of time neither of the parents of said minor has contributed anything whatever to its support, and that the failure to so contribute has been without just cause on their part. That the parents of said minor are unknown to your petitioner.”
The court found that these statements were true, and that consent to the adoption was “executed as required by the statute,” which means, not merely that the consent was executed in the manner specified in the statute, but, also, that it was executed by one authorized to give consent. But, notwithstanding this, it is said that the statements of Prances P. Clark were necessarily inconsistent and nugatory, because, if the parents were unknown, her custody could not have been lawful, and she could not have known whether the failure to contribute to the child’s support was with or without just cause or fault. The contention cannot be sustained. If it were, it would preclude the adoption of a child abandoned at its birth, and whose parentage was not disclosed. The statute, which is very comprehensive, shows in various ways that it was intended to provide for the adoption of “any minor child,” and the provision last quoted, when contrasted with other portions of section 6318, shows / that it was intended to provide for, among others, the very case de
Referring to the fact that the adopted daughter was but three years old at the time of Mrs. Schamel’s death, and to the evidence tending to show that the latter had been a good mother, and had expended part of her earnings, before mentioned, in supporting the child, the court told the jury that under the statute (Comp. St. Neb. 1901, §§ 2503, 2504), the loss of a mother’s care, nurture, training, and instruction was an element to be considered in determining the pecuniary injury to a child of tender years as one of the next of kin. Complaint is made of this, but as the instruction was applicable to the case made by the evidence, and as it gave effect to the decisions of the Supreme Court of the state so far as it has spoken upon the subject (Missouri Pacific Ry. Co. v. Baier, 37 Neb. 235, 246-251, 55 N. W. 913; Chicago, Rock Island & Pacific Ry. Co. v. Zernecke, 59 Neb. 689, 697, 82 N. W. 26, 55 L. R. A. 610), as well as to what we deem to be the better rule (Tilley v. Hudson River R. R. Co., 24 N. Y. 471, 475; Id., 29 N. Y. 252, 285-287, 86 Am. Dec. 297), the complaint cannot be sustained. The damages are claimed to be excessive, but this is a subject which is not open to consideration in the federal appellate courts. Southern Pacific Co. v. Maloney, 69 C. C. A. 83, 136 Fed. 171; Illinois Central R. R. Co. v. Davies (C. C. A.) 146 Fed. 247.
Other contentions are presented by the assignments of error, and have been discussed by counsel, but, upon careful consideration, they have been found to be untenable.
The judgment is affirmed.