SUPPLE 3VC IE 3ST T
PRITEL LIDO, Wilber, Neb. Thursday October 24, 1895.
THE SUPREME COURT.
Komoltomarkablu Decisions Ilnnd
cd Down in tho Lust Few Yonrs.
Votors aro Koquostod to Ilcad
Them, Form Thoir Own Con
elusions and Voto
Accordingly.
It is well known to every intelli
gent person in the state, that six
years a'go Judge Reese, one of the
fairest and best judges the state
has had, was defeated for a rcnom
ination by the direct action of the
railroa'ds in controlling the
state convention by proxies,
some of which, it can
be proved, were purchased in open
market, and they then nominated a
former is. M. attorney for judge
Two years later Reesj was again
defeated by the sam- influence,
and a former B. & M. attorney
nominated for judge. Two years
ago the railroads set out to defeat
Judge Maxwell and put in, in his
place a man they could rely upon
at all times, and by the free use of
money, and of passes not only in
the state, but to any point a part'
desired to go, and by charging full
rates both ways to those delegates
who were in favor of Maxwell, they
succeeded in defeating him. Thus
they have judges of tl?cir own
choosing, and an examination of
the case will show the influence of
the railways in placing unnatural
and forced constructions upon con
tracts and laws in favor of such
corporations, not only against the
public at large, but against railway
and other employees as well.
That these statements are borne
out by the facts, we here refer to
a few of the cases decided by that
court within the last few months.
Tho Case of n Widow.
In C. B. & Q. R. Co., vs Wy
more 58 N. V. 1120, the deceased
was section boss at Mallen, a sta
tion cn the railroad of the plaintiff
in error.
This case was tried in Custer
county before Judge Plainer and
resulted in a verdict of 5000 for
the widow. Company appealed
to the supreme court and had the
case reversed by Norval.
The facta arc as follows: "A
young lady named Wilgushad gone
to Mallen that day to take the train
east. That train was due at about
half past three o'clock a. m. She
came to the station the evening be
fore, and as there seems to have
been no hotel at the place the sec
tion boss permitted her to go to his
house, some ten or more rods from
the station, and remain there
with his family until a few minutes
before the train was due, when he
started with the young lady, who
was a stranger, to accompany her
to the station. They passed along
a traveled way between the tracks,
which were from fifteen to twenty
five feet anart. at a safe distance
from either; a train was on the side
track near which they were passing,
when in consequence of a collision,
with the train on the side track,
they were both killed. A few days
after the death of her husband, the
widow was waited upon by an agent
of the B. & M. railroad, who as
sured her that as her husband was
a member of the Burlington Volun
tary Relief Association, she was
entitled to a certain sum from such
Association.
As she well knew that her hus
band had been a member of that
association for seme time, and that
a certain sum had been retained
each month from his wages to pay
dues, she innocently supposed that
the small pittance of $500, was
from the relief fund and not for the
loss of her husband. It is stated
in the opinion that at the time she
received this money she was re
quired to execute a receipt "in full
satisfaction, and discharge of all
claims, and demands on account
of or causing from the death of
said deceased, which I now have
or can hereafter, have whether
against the said relief fund, the
said Chicago, Burlington &Quincy
railroad company, or any other as
sociation associated therewith in
administration of the relief de
partment." The reply is not set out in the
opinion, but what purports to be
'the substance of it she pleaded
therein "that the release had been
obtained from her by threats on the
part of the company, that she, and
herchildren, would be turned out
of the section house unless she
executed it."
The suprcmecourt refused to con
sider this i;ssuc upon the alleged
ground that the evidence of such
threats had been excluded, but the
questions excluded are there pre-1
sented, and sufficient is shown to
show the nature of the evidence
offered and excluded, and it was
the duty of the court to say whether
those were proper inquiries. It is
a well known rule of law that any
instrument obtahicd under duress
is void and the duress may be
shown whenever action is brought
on the instrument or it is set up as
a defense and such is the rule of
the supreme court as but lately an
nounced. Beindorff vs Kauffman
Go N. W. 101. Here was a widow
suddenly bereft of her husband and
means of support confronted with
an agent of the company who in
tones of sympathy and friendship
pays her S500.00, from the relief
department, the funds of which the
deceased himself had' contributed
to create. She knew that she
as the beneficiary was en
titled to whatever was due
from it. Had the same
dues been paid to almost any of
the beneficial orders, like the A.
O. U. W., the Modern Woadman,
Odd Fellows, and like societies,
she would have been entitled upon
the husband's death to two thou
sand dollars. But in this case,
having accepted the $500, she is
confronted with a receipt to be
signed accepting this pittance to
discharge the company from the
payment of $5,000. Thns the
widow and children of a faithful
servant of the company, who lost
his life in the company's service,
without fault on his part, is com
placently robbed of her means of
support from the money to which
she was entitled under the statute
from the death, by negligence, of
her husband.
In other words, the heirs and de
pendents of the deceased man
could not have what he had laid
avay ior them during his lifetime
in the shape of life insurance, until
they should sign an article foiever
iclcasing a grinding corporation
from its legal duties.
The Caso of a Switchman.
In C, B. & Q. R. Co. vs. Bell,
62 N. W. 314, the defendant was
a switchman in the employ of the
railway company, and was crushed
while coupling cars by order of his
superior olficer. He was badly in
jured and the proof clearly shows
negligence on the part of the com
pany, by reason of which the in,
jury was sustained. He recovered
a judgment in the court below,
which was reversed by the supreme
court upon the ground that he had
been a member of the Burlington
Voluntary Relief association, the
dues of which had been retained
out of his wages, and lie suppos
ing the institution was what its
name imports, had accepted $60
from that department, and there
fore his right of recovery was held
to be barred and he could keep his
injuries and pay the costs. The
same dues, if paid monthly to any
of the accident insurance com
panies, would have entitled him to
at least $2,000, but having ac
cepted a small sum from the al
leged relief department he was
held deprived of a fair return
while he was unable to work and
had absolved the company from
all liability. As construed by the
court, the company is relieved
from all liability, and this was
the evident object of the crea
tion of the department, with a
court to construe it to the com
pany's liking, and deprive its em
ployees of their just rights in the
premises.
Another switchman received in
structions from the railroad court.
In C. B. & Q R. Co. vs. Howard,
63 N. W. 872, the defendant in
error Howard, a brakeman, was
injured in the foot while switching
cars at Dorchester, Afterwards
his foot was amputated, and he
brought an action against the com
pany and recovered before a jury
in the district court.
This judgment was reversed in
the supreme court and it was held
that he could not recover on either
the pleadings or proof. From the
statement of facts it appears that
the accident was caused by the
displacement of a draw bar or
coupler, in consequence of the car
striking the corner of .mother, and
it was a question of fact whether
or 11 j t the fault was not in the uc
fective appliances. The loss of a
foot to the brakeman maimed him
for li , and if caused by the de
fects complained of or from negli
gence his right to recover was un
doubted and he is entitled to sub
mit these questions to a jury. The
court, how ever, held there could
be no recovery and that the court
below should so have instructed
the jury.
Reference is also made to the
Burlington Relief association, of
which Howard was a member, and
had received certain small sums,
which it is estimated would bar his
right to recover in any evnt.
Mr. Blgnoll "Writes u Lottor.
In C. B. & Q. R. Co. vs. Coch
rane, Go N. V, 874, a fireman in
attempting to get on his engine,
slipped in such a way that his right
foot was caught and run over by
the trucks of the engine tender,
which first caused the amputation
of the toes and afterwards
the amputation of the foot
back to the instep. After
wards the company paid him
$100 for the loss and a receipt in
full taken. In the petition Coch-
(rane alleges that the injury was
settled "in consideration of $100
and the promise of the company to
furnish him employment for the
remainder of his life, or so long as
he desired, with wages sufficient
for the support of himself and
family." This is substantially ad
mitted. The plaintiff at the time
of the alleged settlement was in the
service ot the company and re
mained in its service for six or
eight months thereafter. His
vages do not appear to have been
very high and ho protests against
a reduction. He was then asked
to submit a sample of his penman
ship which he did and a letter was
thereupon written by Bignell, the
company's agent, asking him to
report for duty next Monday morn
ing. This letter was not delivered
until twenty-ssven hours after the
time he was required to report, in
other words the letter was not de
livered until Tuesday, near mid
day. The court censures Coch
rane for his "inexcusable default
and who shows no desire or will
ingness to perform his part of the
contract" and the judgment in his
favor was reversed, as "he was
guilty of the first breach of con
tract, and his default was without
justification or excuse."
Another Caso.
In C. B. & Q. R. Co., vs. Ole
son, 59 N. W. 554, the defendant
in error was one of a force of men
engaged in repairing the track, be
ing in charge of a foreman, and he
was ordered by the foreman to
jump on a moving engine and pro
cure a can of oil to oil the jack
used in raising the track; that in
attempting to do so he slipped and
fell and was injured without any
fault on his part. The company
denied negligence. Oleson recov
ered in the court and jury below,
but the judgment was reversed in
the supreme court for alleged error
in the instructions.
Tho Eight Hour Law.
In Low vs. Rees Printing Co.,
41 Neb. 127-59, N. W. 362, the
court not only held void the sec
tions of the statute relating to the
number of hours which should con
stitute a days wbrk "for all classes
of mechanics, servants and labor
crs, through the state of Nebraska
excepting those engaged in farm
and domestic labor," but denied
the power o." the legislature to pass
such a law, as being in conflict
with the constitution. An exam
ination of the opinion will show a
labored effort in a multiciplicity of
words to befog the real issue, and
it is slurred over. A year or ore
before the opinion was filed the
plaintiffs asked to have the case
advanced as being of public im
portance, and a motion to that
effect was filed by the plaintiff in
error, but a majority of the court
refused to advance it or consider it
of public importance.
FINANCIAL SCHOOL. "
The Eklns ot animals were the ear
liest forms ot money.
Sheep and oxen among the old Ro
mans took tho place ot money.
Oxen form tho circulating medium
among the Zulus and Kaillrs.
TI11 to-day forni3 tho standard ot
value at the great fairs of Nlshnl Nov
gorod. In tho retired districts of New Guinea
femalo slaves form tho standard ot
valuo.
Iron spikes, knives and spear heads
and brass rods nro employed In certain
parts of Central Africa.
Chocolate Is still used In the Interloi
of South America for a currency, as are
cocoanuts nnd eggs.
Tho archaic Greek money wns In the
form of thick, round lumps of metal,
stamped with tho given value.
Whalvjs' teeth aro tisoil by tho FIJIans,
red feathers by somo of tho South Sea
Islanders, and salt In Abyssinia.
Tho Icelandic and Irish laws yet have
traces of tho use of cattle for money.
Many Teutonic fines were paid In cattle.
A learned and just judge,
agetii of the coroorations,
dc you want?
or an
which
WITH AND WITHOUT MAXWELL
The Court I't'vcrsc. Jteir ncil llo
lelvps the Knllroail irsis:t5 Hum
uses us Soon as Maxwell JLvutcs.
Some Powerful Influence Ilroiujht to
(Jhtins;e tli Minds of tho Judges
Left 011 tho Iteuclt.
Some Thing the Itnilronil Can Do.
In Omaha and Republican Val
ley Ry. Co. vs. Clark (57 N. W.,
545) Clark's team had been fright
ened by the neglectful discharge of
steam by one of the company's en
gines standing at a crossing of a
public street in the city of Norfolk
and ran away, breaking Clark's leg
and inflicting other very severe in-
juries. He recov
;red $4,835
111
the district court.
The company took the case to
the supreme court, where it was
heard in 1892 and the judgment
of the district court affirmed, all
the judges, Maxwell, Norval and
Post, concurring, and it was held
that where a locomotive crosses one
of the principal streets of a city,
where teams are constantly pass
ing, and where an employee of the
company, having care of the en
gine, UNNECESSARILY opens
the valves of his engine, and lets
steam escape, and frightens a team
and causes it to run away, the
company is liable fo: the damages,
provided the person in charge of
the team was free from contribut
ory neglect. The first opinion was
written by Judge Maxwell, and
every fair-minded lawyer will con
cede that the statement of the law
was correct.
Tho railroad company moved for
a rehearing, which was granted,
and a second opinion written after
I Judge Maxwell's term had expired.
The second opinion win oe iounu
in Vol. 59, N. W., 545, where the
judgment was reversed, and it was
held in fact, that there could be no
recovery, and rules were laid down
as to the evidence required in a
case of that kind, that will forever
preclude recovery in such cases.
There must have been some
powerful influence brought to
change the minds of those other
two judges, after Maxwell had lett
the bench. There was nofriendof
the people there to protect this
man's honest claim of more than
$4,000, and point out to the citi
zens of Nebraska the shortcomings
of some of their chosen servants.
Bailroada Can Destroy Crops.
In a number of decisions, begin
ning with Morrissev vs. the C. B.
& O. Rv. Co. (-56 N. W., 94b) it
has been held that a railroad com
nanv may construct mi embank
mcnt without openings, nearly
across a party's land and throw the
surface water thus accumulated
from rains, freshets, or overflows
upon the proprietor below, with
out rendering the railroad company
liable.
In the above case the farmer's
crops were destroyed in the years
1SS8 and 1889 by the obstruction
of the water by the railroad em
bankment, and turning the water
in a body on his land. The court
held that he was remediless. The
following is the statement as it ap
pears in the final opinion as to the
cause of injury: "An embank
ment was made without an open
ing through it, from which it re
sulted that the water, which in for
mer freshets had been discharged
over the bottom land, now crossed
by the embankment, was arrested
in its course toward the Nemaha
river and diverted to Yankee creek,
causing thereby an increased vol
ume of water to seek an outlet by
way of that creek and the bottom
lands beyond it, including those of
the plaintiff. To this increased
flowage of water plaintiff attributed
his injuries complained of."
Yet it was held that the com
pany vas not liable for the dam
ages. ' ,
A Furmor's Exporionco.
The preceeding cases serve to
illustrate the methods of the rail
road company in dealing with its
employes, their widows and or
phaned children. There are many
other cases that we might cite had
we the necessary room to print.
It is not alone the railroad em
ployes that are made to feel the
awful effects of a supreme court
owned and controlled by the rail
road authorities. The following is
a typical case:
The caso of the 0. & R. V. R.
Co. vs, Scvorin. This was a case
where the railroad company con
structed its line of toa'l through a
man's front yard, passing between
his house and the public high way.
It was necessary for the farmer to
cross the track of the company
every time he left home.
The company fenced their track
on both sides and at the crossing
in front of the house, put in two
sets of bars, large, heavy planks,
which required a stout man to take
down and put up again. The far
mer sued the company to compel
them to put in an "open way,"
with "cattle guards" to prevent
stock from getting upon the track.
He recovered in the district court
before a jury.
The case was carried to the
supreme court by the company,
where it was reversed by Judges
Cobb and Norval, on the ground
that the company had sufficiently
complied with the law by putting
up the bars referred to above.
Judge Maxwell filed a dissenting
opinion, citing the law in the case.
It is in part as follows: "SecioG,
Chap. 16, Compiled Statutes, Neb.,
provides: When any person owns
land on both sides of any railroad,
the corporation owning such rail
road shall, when required so to do,
make and keep in good repair, one
cause-way or other adequate means
of crossing same."
bee. 1, Article 1, Chap. 72, pro
vides: "That every railroad cor
poration whose lines of road or any
part thereof is open for use, shall
erect and maintain fences on the
sides of their said railroad, suitable
and amply sufficient to prevent
cattle, horses, sheep and hogs from
getting on the railroad, except at
the crossings of public roads and
high wavs and within the limits of
towns, cities and villages, with
opens, or gates, or bars at all farm
ciossmgs of such railroads for the
use of the jroprietors of the lands
adjoining such railroad." Max
well says concerning the ibove
that the law "requires farm cross
ings of railroads to be with opens,
gates or bars. There are three
classes of cases, therefore, pro
vided for by statute, and the ques
tion of what is an adequate cross
ing is a question of fact (for a jury)
considering all the circumstances
of each case. If a crossing is but
little used, then bars may be suffi
cient and would be an adequate
provision. If the crossing is used
to a greater extent, then gates
ma' be sufficient, but if the cross
ing is in constant use, as where the
railroad intervenes between the
public road and the residence of
the land owner (as in this case)
then an adequate crossing would
be an "open way."
"The words 'with opens' are
evidently designed to apply to
cases of that kind; otherwise they
hive no meaning whatever.
"The court below found that
the only adequate means of cross
ing, and this court cannot say as a
matter of law that such way is not
required. The words 'with opens'
are entirely ignored in the major
ity opinion (written by Cobb and
Norval), although they evidently
refer to a class of cases not pro
vided for, where gates or bars
would be sufficient means for a
farm crossing. The judgment of
the court below in my view is right
and should be affirmed."
Farmers should consider this
case before casting their vote for
supreme judge this fall. Look at
the difference between the two
men. Both are represented in this
case.
A Poor Potition Itoad It.
In Mo. Pacific Ry, Co., vs. Bax
ter, 60 N. W., 1044, the widow as
administratrix brought an action
for the death of her husband and
recovered a judgment in the district
court. This was reversed in the
supreme court on the ground that
the petition did not state a cause
of action.
The petition as set out in the
opinion is as follows: "The peti
tion of the administratrix alleged
the death of George Edward Bax
ter; her appointment as adiuinis
tratnx ot nis estate; that he was
her, husband, and at the time of
his death left the administratrix,
his widow and two minor children,
him surviving. The petitition fur
tljer alleged "that the defendant
had so negligently, carelessly and
unskillfully constructed its railroad
track at Talmage, both upon the
main track, side tracks and spur
tracks, that any one who was an
employee of said company, using
due dil ence care and skill in
transacting the business of said
company, was liable to be injured,
hurt and damaged on account of
the negligent, careless and unskill
ful manner in which the said track
of the defendant was constructed
at Talmage; that the said George
Edward Baxter, while employed
by the defendant at a reasonable
salary as u compensation for his
services, in the exercise of due care
and skill upon his part in coupling
the cars upon the side track of tha
defendant at Tnlinngc, did, with
out any negligence upon his part,
but on account of the negligence,
carelessness, and unskillfulness of
the defendant in the construction
of itsrailtoad bed, side tracks and
spur tracks, in not properly block
ing, and filling up the space be
tween the outside rail and guard
rail, have his left ankle caught
just above the heel between tho
guard rail and outside rail of said
track, which threw him under tha
trucks of said cars and he was
thereby killed, which said killing
was on account of the carelessness,
negligence and unskillfulness on
the part of the defendant in the
construction of their railroad, and
while the said George Edward
Baxter, the employee of the said
railway company, was acting di
rectly under the orders of the con,
ductor of said train of which ha
was brakeman, and while he was
using due care, diligenc and skill
in the transaction of the business
of said railway company."
The administratrix also alleged
in her petition that her husband at
the time of his death, was thirty
three years old. At that tirt-e he
waSjCtnployed by the railway com
pany as a brakeman on a train
running between the stations of
Crete and Talmage in Nebraska,
"including the main line of the
road at Talmage, the side track,
spurs and other tracks necessary)
to be used and operated by said
railway company at said place in
connection with their business to
and from Crete, in Saline county,
Nebraska." It will be seen at
once that the petition evidently is
well drawn, and certainly is suffi
cient to entitle the widow to re
cover, but it was held to state no
cause of action, and would not
support a verdict in favor of th
widow.
A Brakeman's Fato.
In Erb vs Eggleston, 60- N. W.
98, the defendant was a brakeman
employed in the K. C. W and N.
W. R., the plaintiff in error being
the receiver of such road. Th"
defendant had about two years ex
perience as a brakeman, and Had
been in the employ of the- com
pany about three weeks, when tho
injuries complained of occurred.
The parties were engaged m mak
ing up a train. The engineer had
just supplied sufficient momentum
to a car to carry it to the train then
being made up, and the defendant
as the car passed him undertook to
seize the hand holds of the car and
mount the same and apply the
brakes. The defendant's hands,
however, vere wrenched loose
from the car and he fell on the
track immediately behind the car.
and in front of the moving engine
doing the switching. He signalled
the engipe to stop, but it passed
over him, mangling both arms so
that amputation was necessary.
An examination of the facts stated
in the opinion will show that if
this man, bruised and mangled as
he was, cannot recover for the in
juries, then it will be impossible to
recover in any -case, and it vir
tually exempts railroads from lia.
bility.
A Itailroad Can Dofy tho Laws.
In the case of the Omaha and
Republican Valley Ry. Co. vs.
Hall, G3 N. W. 49, it was held
than an informer could not main
tain an action to recover the pen
alty of $50 for each case of neglect
imposed by the statute upon a rail
way company for failing to ring
the bell or blow the whistle, at
least eighty rods from the crossings
of public roads or streets.
This statute was passed in 1864
before there was a railroad in tha
the state, and was carried into tha
revised statutes of 1S66, page 226,
and has remained unchanged to
thu present time.
In the above case the action was
brought to recover for 75 cases of
action of $50 each, in all $3,800.
The plaintiff recovered before a
jury in the court below, but this
was reversed by the supreme court
and the action dismissed upon the
ground that a private citizen could
not maintain the action.
The statute requires the bell to
be rung, or the whistle blown, at
least eighty rods from the crossing
of a road or street and provides
that the bell shall he kept ringing,
or the whistle whistling until tha
road or street is crossed; and for
every ntglect the railroad company