Spirk v. Chicago, Burlington & Quincy Railroad

Harrison, C. J. For each of the plaintiffs in error an action was instituted to recover the damages alleged to have been caused [567] by tlieir wrongful, unlawful, and forcible ejection, before arrival at tlieir destination, from a train of the company, on which, they were passengers. The causes of action originated in the same occurrences and the causes were consolidated and but one trial had. There were verdicts and judgments for the plaintiffs, which on error to this court in behalf of the company were reversed and the causes remanded. A second trial in the district court resulted in verdicts and judgments for the plaintiffs, but being dissatisfied with the' amounts of recovery they now present the causes here for review. The facts were stated in a former opinion (see 51 Neb. 167) and we will not restate them, but for the main facts refer the reader of this opinion to that one. The company was allowed to introduce what are termed in railway business “train sheets,” the memoranda or records made by a train dispatcher of arrivals and departures of trains, to and from stations. That these were admitted in evidence is the ..burden of one of the assignments of error. Whether the action of the court in overruling objections to the introduction of these “train sheets” was or was not erroneous is without weight at this time, with the existing conditions of the evidence in regard to the movements of the trains on which the plaintiffs traveled at the time of the occurrences in which these suits originated; and of the train on which they should have made a part of their journey the evidence contained in the “train sheets” could not possibly prejudice the rights of the plaintiffs. It is complained that the seventh instruction given on the gourt’s own motion was erroneous. In the assignments in the motion for a new trial this was grouped with other instructions, and to some of the group no exceptions seem to have been noted, and some were without error; hence the assignment must be overruled. ,It is also urged that the court erred in giving instruction numbered eight, requested by the company. In the complaint of this action in the motion for q new trial [568] this is joined with another to which there was no exception, and against which no objection is at this time raised, and the assignment must be held unavailing. It is argued for the company that it was the duty of the plaintiffs to ascertain where, when, and how they could travel to their destination by the trains of the company, what changes would be necessary, and, apparently having failed in the duty, they had no just cause of complaint against the company. A number of other and further more or less connected matters are also discussed. However all these things may be, we are satisfied that, under the facts undisputed or established and those which on conflicting evidence were determined necessarily favorably to plaintiffs in order to reach a general finding in their behalf, the question of whether they had done all that in the exercise of ordinary prudence under the circumstances was required in making inquiries relative to the running and stopping of trains at stations was a matter of fact, and if so, was for the consideration and determination of the jury; and as the verdict was for the plaintiffs, it must be concluded that this, with other facts elemental of the groundwork of such a verdict, was decided in their favor. It is also complained that the damages awarded the plaintiffs were inadequate. This contention is correct. The amounts of the verdicts were below the pecuniary loss established; hence the judgment must be reversed. (Stanwood v. Omaha, 38 Neb. 552; Ellsworth v. City of Fairbury, 41 Neb. 881.) It is complained that testimony was excluded of the cost of the railway tickets which had been purchased by plaintiffs for passage over the company’s line of road to Haigler, the place to which they were traveling. Relative to this it may be said that to give the court a full knowledge of what it was sought to show in the answer to the interrogatory to which an objection was sustained, and to direct attention to its relevancy and materiality, if any it would possess, it was accessary that an offer of [569] proof should have followed the ruling of the court. There was no offer, and the alleged error will not be reviewed. Reversed and remanded.