58 Neb. 171 | Neb. | 1899
Reuben Yincent began tliis action against the Union Pacific Railway Company and Lafayette Simpson, alleging that the Union Pacific Railway Company was a common carrier from Beatrice, in this state, to Portland, Oregon, and contracted with Yincent and Simpson to
The defendant company urges as a ground of reversal that the contract of shipment was a joint contract of Simpson and Vincent, and that they should have joined as plaintiffs. This point was raised by objection to the introduction of evidence and otherwise during the trial. The case is in this aspect certainly unusual. It appears from the petition itself that the contract was made with both Simpson and Vincent; that no horses were by them owned in common, but some belonged to one and the rest to the other. A recovery is sought for injury to those belonging .to Vincent alone. We need not consider what is the correct practice in such case. There are only three possible views of the law, and according to any one the railroad company cannot now complain. It might perhaps be said that as the Code of Civil Procedure requires an action to be brought in the name of the real party in interest, and as that party has been defined to be the person entitled to the avails of the action (Gerner v. Church, 43 Neb. 690; Kinsella v. Sharp, 47 Neb. 664), the action might properly be brought by Vincent alone. Again, it might be claimed, as is claimed in argument, that, the defendant is entitled to have all the parties to the contract in court, to avoid a splitting of causes and multiplicity of actions. If so, the case would seem to fall within section 42 of the Code, Avliich provides that “if the consent- of- one who should have been joined, as plaintiff cannot be obtained, he may be made a defend
Error is assigned on the suppressing of a deposition which the defendant company had taken, and which was, although it had been suppressed, offered on the trial and excluded. The special grouiíd of this assignment is that the exception to the deposition was not made and filed
The evidence shows that the horses were shipped from Beatrice to Olympia; that from Beatrice to Yalley extends a line of road owned by the Omaha & Republican Yalley Railway Company; that it there connects with the line of the Union Pacific Railway Company; that at Granger, Wyoming, there diverges from the latter line that of the Oregon Short Line & Utah Northern; that these were the lines of shipment, and that the horses were injured in Idaho, on the line of the Oregon Short Line & Utah Northern. The shipment was a through
It is said that there was no sufficient averment of negligence. Assuming that it was necessary to aver and prove negligence in such a case, it was here sufficiently averred by a general charge that the company negligently handled the car containing the horses in giving momentum to its train, so that thfe horses were injured. While the nature of the negligence should be pleaded, a general averment is sufficient, unless the pleading be attacked by motion. (Omaha & R. V. R. Co. v. Wright, 49 Neb. 456.) It is said that the petition shows that the horses were injured in giving momentum to the train, and that this being a necessary act, it could not have been negligently done; but the averment was that the act was performed in a negligent manner. It is argued that there was no evidence of negligence, but. we are satisfied that the evidence was on this point sufficient to go to the jury, again assuming that it was necessary to prove negligence.
Several assignments of error relate to the exclusion of
The contract of shipment contained restrictions and limitations upon the liability .of the company, both as to the amount of damages recoverable and the liability for any damage. It is unnecessary to set these out. They have all been passed upon in former cases. It is argued that these restrictions are not contrary to the law of the state, and if they are, that the state law is not here applicable, because the shipment was of an interstate character, and subject to- regulation by congress alone. Every phase of this argument has been met and determined adversely to the defendant in St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, and Atchison, T. & S. F. R. Co. v. Lawler, 40 Neb. 356. It would be useless to renew the discussion or restate the particular questions.
Some other specific assignments of error are relied on, but they have been directly or logically disposed of by what has been already said.
Affirmed.