Chicago, Rock Island & Pacific Railway Co. v. Zernecke

55 L.R.A. 610, 82 N.W. 26, 59 Neb. 689, 1900 Neb. LEXIS 57

Opinion

Norval, C. J.

In 1894 Ernest H. Zernecke was killed in a train wreck while a passenger of the Chicago, Rock Island & Pacific Railway Company, and his wife, as administratrix of his estate, brought this action to recover damages therefor, for the benefit of herself and minor children. The train was wrecked by the criminal act of a third person, without fault on the part of the railway company. On the trial a verdict was rendered in favor of the plaintiff, and judgment was entered thereon, from which the railway company comes to this court on error.

On the trial the. folio wing, instruction was giyen by the court, to which the defendant took exception: “The jury are instructed that if you find from the evidence, that Ernest H. Zernecke was a passenger, being carried on the train of the defendant railway company, that was derailed and wrecked near Lincoln, Nebraska, on August 9, 1894, thereby causing the death of said Zernecke, and that plaintiff is his administratrix, and she and her children had a pecuniary interest in his life, and suffered loss by his death, then you should find for the plaintiff.” Section 3, article 1, chapter 72, Compiled Statutes, declares: “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the. person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of tlie person injured, or when the injury complained of shall be the violation of some express rale or regulation of said road actually brought to his or her notice.” The instruction quoted is within the provision of said section, aside from the omission to state exceptions contained in the statute, that the defendant was not liable for injury resulting from the criminal negligence of the person injured, or from his violation of some expressed rule or regulation of the company actually brought to the notice of the injured passenger. There is an entire absence of any evidence in the record before us tending to bring the case within either of the exceptions contained in said section 3; therefore the instruction was pertinent and proper, if said legislation is constitutional and applicable to the case at bar. The constitutionality of said section has been assumed by this court in numerous cases. See Chollette v. Omaha & R. V. R. Co., 26 Nebr., 159; Omaha & R. V. R. Co. v. Chollette, 33 Nebr., 143; Missouri P. R. Co. v. Baier, 37 Nebr., 235; Chicago, B. & Q. R. Co. v. Hague, 48 Nebr., 97; Chicago, B. & Q. R. Co. v. Hyatt, 48 Nebr., 161; Fremont, E. & M. V. R. Co. v. French, 48 Nebr., 638. And the validity of said statute has been expressly decided in Union P. R. Co. v. Porter, 38 Nebr., 226; Omaha & R. V. R. Co. v. Chollette, 41 Nebr., 578; Chicago, R. I. & P. R. Co. v. Young, 58 Nebr., 678, 79 N. W. Rep., 556. The legislation is justifiable under the police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers, as they were of baggage and freight; and no good reason is suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line, while the corporation must respond for any damages to his baggage or freight.

It is argued by counsel for defendant below that said section 3 is not applicable to cases of injuries causing the death of a passenger, the contention being that section 1, chapter 21, Compiled Statutes, is the law governing this class of actions, and that, under the provisions of said last named statute, the defendant should have been permitted to prove that the death of plaintiff’s husband was not caused by any act of negligence on the part of the railway company, and that, the jury should have been instructed that before there could be a recovery it was necessary to establish the fact that defendant company had been negligent in the premises. It is further argued that, if it be held that said first named statute is the law governing this class of cases, then the same has been repealed by said chapter 21, which is a later enactment, and that the two are in conflict. If the two statutes are in conflict, the argument is unanswerable. But it is believed that the two statutes do not in anywise conflict, one with the other. Said section 3, as already stated, makes a railroad company an absolute insurer of the safety of its passengers, save in cases falling within one or the other of the two exceptions mentioned in the statute. It gives or creates a right of action in favor of the injured passenger; and when it is established that a person is injured while a passenger of a railroad company, a conclusive presumption of negligence arises in every case except where it is disclosed that the injury was one caused by his own criminal negligence, or by his violation of some rule of the company brought to his actual notice. On the other hand, chapter 21, Compiled Statutes, known as “Lord Campbell’s Act,” creates a right of action in favor of the personal representatives of the deceased where none existed before. It is very broad in its terms, being applicable to all acts of negligence, whether on the part of a railway company or others. Under said section 3, article 1, chapter 72, a litigant establishes an act of negligence, or a default, on the part of the defendant railway company when the fact is disclosed that he was a passenger of such railway company, and while such passenger, was injured. In Other words, a conclusive presumption of negligence arises where the case does not fall within the exceptions of the law, and he has his right of action. Prior to the adoption of said section 3, in 1867, he would have had to affirmatively establish some act of negligence on the part of the railway company to entitle him to recover for injuries received while a passenger. Prom the time this section was passed until said chapter 21 was adopted in 1873, no right of action existed for negligence resulting in the death of a person. But said chapter, in broad terms, gives a right of action for the death of a person caused by the wrongful act, neglect or default of another, if the same is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof. Now, it is indisputable that, if Zernecke had been injured merely, and not killed, he could have recovered against the railway company under said section 3, article 1, chapter 72, and that thereunder said injuries would have been deemed to have been caused by the wrongful acts, neglect or default of the said railway company in failing to carry such passenger safely. Hence this case falls within the scope of said chapter 21, and the fact of negligence or the defendant’s wrongful acts or default is established when the evidence discloses the facts specified in said section 3 of chapter 72. The two statutes are not in conflict, for the reason that one creates a liability in favor of the passenger himself, and obviates the necessity of proving the negligence of the carrier, while the other statute gives a right of action, where none existed before, to the personal representatives of a deceased person in all cases, where such person could have recovered damages for his injury, if death had not ensued. See Ean v. Chicago, M. & St. P. R. Co., 95 Wis., 69; Philo v. Iowa C. R. Co., 33 Ia., 47. The rule is that all statutes in pari materia must be taken together and construed as if they were one enactment. See Hendrix v. Rieman, 6 Nebr., 516; State v. Babcock, 21 Nebr., 599; People v. Weston, 3 Nebr., 312. Statutes should be so construed, if possible, as to give effect to every provision, and an act should not be placed in antagonism with another act, unless such was the manifest purpose and object of the legislature. See McCann v. McLennan, 2 Nebr., 286; Burlington & M. R. R. Co. v. Webb, 18 Nebr., 215; State v. Babcock, 21 Nebr., 599. Tested by these principles, the conclusion is irresistible that said section 3, article 1, chapter 72, Compiled Statutes, was not amended by chapter 21 of said statutes known as “Lord Campbell’s Act.”

It is further contended that section 3, chapter 72, is in conflict with the fourteenth amendment of the constitution of the United States, and with section 3 of article 1 of the constitution of this state, as tending to deprive railroad companies of their property without due process of law. This court has decided to the contrary in Chicago, R. I. & P. R. Co. v. Young, 58 Nebr., 678, 79 N. W. Rep., 556 and cases therein cited, and we see no reason for departing from the law as therein laid down. See Clark v. Russell, 97 Fed. Rep., 900; Missouri P. R. Co. v. Mackey, 127 U. S., 205; Railroad Co. v. Mathews, 165 U. S., 1; Railroad Co. v. Paul, 173 U. S., 404.

The following instruction was given by the court: “If, under the evidence and instructions of the court, the jury find for the plaintiff, then,. in assessing the damages which the plaintiff is entitled'to recover, the jury should assess the same with reference to the pecuniary loss, sustained by the wife and children of the deceased, and in determining this, you may consider the probable earnings of the deceased, his age, business capacity, experience, habits, health, bodily and mental qualities, during what probably would have been his lifetime, if he had not been killed, so far as these several matters have been shown, by the testimony, and you may also, consider the value his services might have been, in the superintendence and attention to, and care of his family and the education of his children, but the amount you can allow, can not exceed the sum of $5,000.” It is contended that in the portion of the instruction which directed the jury that, in considering the question of what the value of the services of deceased might have been in the superintendence and care of his family and the education of his children, etc., the jury were not required to confine themselves to the evidence, but were “turned loose” without anything to guide them in ascertaining the value thereof. We do not think so. In a general instruction the jury were told that in case they found for the plaintiff, it must be for pecuniary damages alone, which they must find from the evidence the plaintiff and her children had suffered; and no doubt the jury considered the two instructions together in passing upon the element of damages. There was evidence on which to base the instructions, and we do not doubt, that, under the instructions, the jury gave it only its due weight. It is further argued that the court, in this clause of the instruction, should have used the word “probably” instead of the word “might.” We have no doubt that the former word is the better of the two in that connection; but jurors are not given to nice distinctions in words, and we can not imagine that they were in anywise misled by the use of the one word rather than the other. We have carefully examined all the arguments adduced in the briefs of counsel, but fail to find any error reversible in the record, wherefore the judgment of the lower court is

Affirmed.