shall pay 50, one-half to the in
former and the other half to the
Btatc.
Thi3 is what is called a"qtii tarn"
ction, very common in eastern
Btatcs, in which the informer is
given one-half of the amount to be
recovered; the object being to se
cure the enforcement of the statute.
The only case cited by the Ne
braska court (Norval a member) in
support of their decision is that of
the St. Louis, etc., Railway Co.
vs. the State (19 S. W. 572.)
This case involved the question as
to which should bring the action,
the state or tho informer; it was
held that the action had been
properly brought by tho informer.
That is in Missouri, but in Ne
braska the court held that a pri
vate citizen could not sua and re
versed and dismissed the decision
of the jury.
There is an entire failure in the
Nebraska court to distinguish be
tween a mere penalty and a "qui
tarn" action, in which a common
informer may sue (Nye vs. Lam
phicr, 2nd Gray 259, a Mass case.)
Drew vs. llillicain, Vermont, 641.
Many others could be cited.
It is well known that many per
sons are killed or maimed 'in the
Etatc each year from being run
over by the cars' and locomotives
at road and other street crossings.
Most of these accidents would be
prevented if the whistle was blown
in time, or the bell rung, which is
evidently the object of the statute.
This law had been enforced by
the district courts for many years
and no attempt to question it has
been made until the railroads con
sidered it safe to do so. The de
cision is an arbitrary exercise of
power by a court in favor of the
corporations, which relieves them
from performing a statutary duty,
and invites neglect on their part
and consequently increases the
danger to every person who has
occasion to cross the railroad.
The necessity of giving warning
at road and street crossings in
time to enable those crossing to
get safely over before the train
reaches the place, is felt by every
one, and was required by the leg
islature in passing the law in ques
tion, and no attempt has ever been
made in the legislature to modify
or repeal it. It is in effect con
ceded that the company failed to
give the signals the statute impera
tively requires, that the statute is
a valid exercise of power of the
legislature, and that the informer
is entitled to one-half of the
amount to be recovered, and has
an interest therein to that extent;
but the court refuses to permit him
to recover that interest and en
force the law.
. Railroads May It 11 111 Property.
In the case of the Omaha Fair
and Exposition Co. against the
Missouri Pacific Ry. Co. (60 N.
W., 330) fire was set by an engine
to the plaintiff's property and loss
Gustained, for which the action was
brought.
In this case there is an evident
nttempt to lay a foundation to
over-rule the case of the B. & M.
Ry, Co. vs. Westover (4 Neb.,
368) in which it was held that the
failure of the plaintiff to plough
fire brakes about his premises did
not constitute contributory negli
gence so a3 to defeat his re
covery. This is said to be correct
as applied to the facts of the West
over case, but it is said in effect
in the sixth point of the syllabus
that he may in certain cases be re
quired to guard against fires NEG
LECTFULLY set by tho railroad
company, or he will be remediless
in case of loss.
The case of the 13. & M. vs.
Westover has stood as the law of
this state for tweuty years, and the
soundness of its propositions has
never been questioned, and are ad
mitted to be correct in the case
cited, yet distinctions are sought to
make exceptions in favor of the
company to prevent persons from
recovering for their loss.
There are other decisions similar
to these which have been rendered
within the last twenty two months
where parties having valid causes
ol action have been denied relief,
and turned out to muse upon their
wrongs.
T .
in no case wnere a party was
defeated in the court below has he
ticen granted any relief in the Su
prpmc Court,
A reputable gentleman, who has
made a thorouch examination of
the cases within tho time stated,
finds that 87 per cent of cases in
wliich the B & M. R. R. Co. has
an interest have been decided in
its favor, and that those decided
against it are generally small and
insignificant, while cases involving
large sums arc almost without e..
ccption decided in its favor.
In New York City the Piatt re
publicans and the state democrats
have .nominated a fusion ticket for
city and county officers. It is an
effort to beat Tamany Hall, Crocker
nd Hill. Lincoln Independent.
ATYPICAL RAILROAD CASE.
Trains Can Refuse To Stop 1,0113
Enough For Passengers to
Safely Alight. 1
If Maimed in Getting Off, a Jury
Says They Can Recover J)am
age?, Hut tho Supremo
I Court Sayi No. !
I
This case was tried in the dis
trict court of Lancaster county be
fore Judge Addison S. Tibbetsand
resulted in a verdict of ?5,ooo in
favor of the plaintiff, Minnie .Lan
dauer. The case was carried up to
the supreme court by the C.
13. & Q. R. R. Co., where a ma
jority of the court in 1S93, con
sisting of Judges Post and Norval,
reversed the decision of the lower
cour, protecting the railroad com
pany, saving them $5,000 and com
pulling the girl to pay tiie costs
over the objection and dissenting
opinion of Chief Justice Maxwell,
which will appear later on.
The case was brought about as
follows: July 5th, 1S89, Minnie
Landaucr purchased a fust class
ticket over the 13. & M., from Lin
coln to Cushman Park. She had
been informed that her brother
near the park had been nfllictcd
with sun stroke and she was on her
way to see him. There is no depot
at Cushman Park station; only a
small platform about as high as the
rails of the track for passengers to
light upon.
Upon arriving at the station the
conductor called out the name of
station, but kept on collecting
tickets. The train stopped, a
cording to the testimony of all the
witnesses, but a very short time
some 01 tnem estimating tnc nine,
at 40 seconds.
As soon as the train stopped, the
plaintiff, Minnie Landaucr, a young
woman 17 years old, arose from
her seat and started to get off. The
particulars will come out more
fully in Chief Justice Maxwell's
dissenting opinion.
In attempting to alight from the
car she broke her ankle and se
verely injured her spinal column
to such an extent that a jury in the
case saw fit to find a verdict in her
favor to the amount of $5,000.
The export medical testimony is
too long to quote in full, or wc
would be perfectly willing to sub
mit it to the voters of this state and
have no doubt but they would de
cide in the same manner that the
jury did in the case.
Chief Justice Maxwell said the
testimony of the plaintiff below ap
pears to be truthful and fairly con
strued amount to this: "That the
train stopped at Cushman Park;
that she had been informed that
her brother had been afflicted by
sun stroke; that she was very anx-
ious to stop at the park; and that
as soon as the train stopped, rose
up from her scai, looked back and
went out of the front end of the
coach to leave the car; that she ex
pected the train to stop for a suffi
cient length of time to enable the
passengers to leave the train with
out undue haste, and as she started
down the step of the car she saw
the platform but was carried by be
fore she alighted, although she
was not aware of the fact until she
fell and was very severely iniurcd.
lie says further: "It.isthc duty
of the conductor of a railroad train
to look after the passengers that
wish to get on or off at the various
stations along his line; he repre
sents the company, is its author
ized agent 111 all matters iu connec
tion with the receiving and dis
charging of passengers, as well as
the subordinate servants of the
corporation. The company recog
nizes this obligation and the con
ductor in his testimony, after stat
ing that the stop was longer than
usual, about three minutes in all,
says: A. 'Yes sir, it was lotiger
than usual.' Q. 'Why?' A.
'On account of the train being
crowded and I not being able to
get on and see the passengers get
off myself, but I had my Brakeman
do it and Krt did not know when
they were all off exactly and he
thought he tiad given ample time
and did not sec any more coming
and he started the train.' Q.
'How many passengers got off
there, do you know?' A. 1
think there were live.' Q. 'Be
sides this girl?' A. 'Four I
think becides the girl.' The
brakeman did not know, he says,
when the passengers were all off,
exactly, and started the train. This
is evidence of neglect."
The chief justice cites eighteen
cases and authorities in support of
this.
He cocs on to sav, "Had the
conductor in this case done his
duty there is reasonable ground to
believe no accident would have
happened. It was his duty to eee
that she was permitted to leave the
train safely. The train evidently
stopped but a short time, not long
enough for passengers to alight
without danger. Where a con
ductor or a person in charge of the
train gives a signal to start while a
passenger is obviously in the act
of getting off the train, the com
pany will bo liable if injury oc
curs." Maxwell cites fourteen cases and
authorities in support of this doc
trine. "Here is self-confessed negli
gence on his part. There was a
young girl,' in experience but little
more than a child, and so far as
appears, inexperienced in travel,
who had paid her fare to, and de
sired to stop at the park, yet the
man who had just taken up her
ticket and whose duty it was to see
her safely on the platform, con
fesses that although 'in the same
car with her and but a short dis
tance away, he did not even look
around to sec if she had left the
car."
Here follow sonic remarks con
cerning length of time the train
stopped. In this case there were
some affidavits filed to show that
the verdict was excessive, but sucli
is not the case, as will appear to
any one who will examine the tes
timony in the case. A biokcn an
kle and permanent injury of the
spinal column, with partial, almost
total loss of feeling in the lower
limbs was sufficient in the estima
tion of the jury to warrant the ver
dict. In closing Maxwell says: "In
the majority opinion the rules of
negligence and gross negligence
as heretofore established by this
court are approved, while the de
cision itself in my opinion, practi
cally over-rules both. In a case
like that under consideration, the
testimony should be submitted to
the jury. If a court assumes to
take testimony of this kind where
the principal question is the credit
ability of witnesses away from the
jury and pass upon its sufficiency,
the provision of our constitution
that "a court shall he open, and
every person, for any injury upon
him, his lands, goods, person or
reputation, shall have a remedy by
due course of law and justice ad
ministered without denial or delay"
is a glittering generality, meaning
less veibiage of no force or effect,
but I think we have not yet reached
that point. I believe this is a
meritorious case, where the plain
tiff below (Miss Laudauer) with
out her fault, sustained severe and
lasting injuries and that she is en
titled to compensation for the
same. Many other reasons could
be given why this judgment should
not be reversed, but because of the
great length of this opinion they
will be omitted. 1 fear thcgcneral
rule established will be productive
of great injustice, not only in this
case, but generally. In my view
the judgment is fully supported by
the evidence and should be
affirmed."
The reports of the supreme court
of this state are full of cases simi
lar to the above, where cases have
been tried in the district court, and
reasonable and just verdicts ob
tained before a jury, where the
railroad companies have been able
to carry them up, keep them in the
court two or three years and finally
have them reversed and send those
deserving persons from its halls of
justice, without reparation, and
the press of this state, owned and
controlled as it is largely by the
same corporations, has never dared
to raise its voice in condemnation
of such awful proceedings.
It might be suggested here that
so long as the supreme court of the
state is in tuc hands of gigantic
corporations, the people might
elect every district judge in the
state and yet not secure justice in
any important case, for the final
decision from which there is no ap
peal and where any decision of
the district court involving dam
ages may be reversed, lies only in
the power of the supreme court of
the state.
In this campaign wchavc as can
didates two of the judges that par
ticipated in the foregoing decisions.
Norval concurred in the decision
of the majority court, which saved
the railroad company and lccpt it
from paying its honest debt of
$5,000 to a helpless girl of 17
years.
Chief Justice Maxwell, the can
didate of the people's party, had
the courage to write a dissenting
opinion and stand up for the rights
of those innocent and helpless per
sons who, above all others, need
the protecting care of the law and
for so dointr in this case and iu
several other cases of the same na
turc, he was turned down by those
same political bosses and lost his
position upon the supreme bench.
Which shall be rcturned,and whose
interests shall be protected?
The Gubernatorial Content.
Boyd vs. Thayer. (31 Neb.
page 709.) This case is well
known ovet t e state. In 1890
tho legislature declared James E.
Boyd dulv elected irovernor of the
state of Nebraska. The republi
cans nttcmptcd to keep him from
the oflice by contesting his right to
it upon the ground that he was not
a citizen of tho United State and
by other disgraceful methods keep
control of the office, despite the
wishes of the voters of this state.
The points decided in the case
will appear more fully in Judge
Maxwell's dissenting opinion,
which was in partns follows: Judge
Maxwell said, "the section of the
of constitution above quoted (Sec.
10 article 5), after enumerating the
cases named, declares that in case
of any other disability of the gover
nor, the lieutenant governor shall
act as governor." In the majority
opinion it is said in fact that these
words do not mean what they say;
that they do not mean any disabili
ty not previously designated. The
reason why they fail to do so is not
stated. From the reading of the
section it is evident that the inten
tion was to include all disabilities
by reason of which the person
elected should fail, or cease, to act
as governor. Hint is the plain,
natural import of the words and no
court is justified, from any law or
reason, to adopt a roi:ci:i con
STitucnqN. As well contend
that the word "white" means
"black" as that the word "disabili
ty" in the connection iu which it
is used iu the section above quoted
docs not cover all disabilities. A
roRCi:n and uxnatukai. con
struction of language, either in
a constitution, statute, contract, or
other instrument, is liable to be
fraught with wrong and injustice,
and leaves uncertain what view may
be taken uy the court of any instru
ment or docment, and hence tends
to unsettle and render precarious
the law upon the plainest propo
sition; and therefore that mode of
construction is generally discarded
by the courts. In addition to
what has been said as to the right
of the lieutenant governor to suc
ceed the governor, it will be
noticed that there is no provision
in the case of vacancy for electing
a governor at the next general
election after the vacancy occurs.
Hence if the position of the ma
jority of the court is right a man
who did not receive a sinirlc rote
for the office may hold the office of
governor of the state for t-vo years,
at least, and as much longer as
possible; and thus the government
of the people, by the people, be
deleated and the first stop taken
to Mexicanize the government of
the state. There are other reasons
which might be given."
"In any view of the case how
ever the rekitor (Thayer) ceased
to be governor of tins state on
January 7th, 1S91, and since that
tune had no right to bring the
action or hold the office of gover
nor." MAXWT.LU'S COL KAC.K. '"'
At the time of writing the above
dissenting opinion, Judge Maxwell
was holding an office at the hands
of the republican party. A re-
publican gavernor was attempting
to hold over his time after a demo
crat had been declared elected.
Judge Maxwell was the only mem
ber of the court who knew the law,
and had the courage to stand out
against his own political party and
decide strictly upon the law and
meiits in the case.
The case was taken to the su
preme court of the United States,
which reversed the decision to
Cobb and Norval and upheld the
position taken by Judge Maxwell.
What higher tribute can be paid
to cither a man's ability or his in
tegrity than that. The reward for
this act of bravery, and honesty in
the republican party, was retire
ment to private life. He knew
but one master, that was the law
as lie round it upon the statute
books. He was not their kind of
a man.
Tho Farmer mid tho Cow.
The following are .1 few of the
railroad cases in which Chief Jus
tice Maxwell hied dissenting opin
ions. In the 1 2th Neb., page 77, 13. &
M. R. R. Co. vs. Wondt. This
was an action tried before Judge
Savage in Douglas county, to re
cover the value of a cow owned by
Wendt, and killed by cars of the
railroad company in Omaha. The
jury returned a-verdict in favor of
Wendt for f3J.5o. The company
took the case to the supreme court
on error, where it was reversed and
tho railroad company escaped the
payment of thu amount which
the jury found they should pay to
Wcudt. The evidence showed
that the track was not fenced and
that the railroad company had not
complied with the law in other
particulars. Chief Justice Max
well filed a dissenting opinion in
which ho said, "in my opinion
Wendt is entitled to a larger judg
ment than he recovered, but as he
docs not complain and as substan
tial justice has been done, the
judgment should have been af
firmed," but it was all to no avail,
the majority of the court favored
the Uurlington railroad.
FOR KILLING A BOY.
Tho C. II. Si Q., Ry. Co., vs. Grnb-
lin, 08, Neb., I'ngo 05.
This case was tried in the dis
trict court of Hall count', action
for killing a boy 9 years old. It
was a suit for dan. ages brought
against the railroad by the .boy's
administrator. There was a ver
dict by the jury and judgment for
the administrator. The railroad
company carried the case up to
the supreme court where it was re
versed and the railroad company
escaped payment. The facts are
as follows: Grablin lived on a
farm near the raihoad track; no
part of the line was fenced; boy
was 9 years old; his father had
sent him to loak for some stock;
he was run over by a freight train
that was not properly equipped
with air brakes, etc.; the train was
an "extra," out of time, running at
great speed; gave no signal, hell or
whistle, as it approached the boy.
The reason given by the major
ity of the court for reversing the
case was the admission of testi
mony to show "that if the engi
neer in charge of the locomotive
had been observing a proper and
careful lookout ahead, he could
have scci; the boy in time to have
brought the train to a stop before
it reached the point whetv the boy
was.'' In other words the deci
sion would mean that no matter
if the engineer was asleep and for
that reason could not have been
keeping "careful lookout ahead"
or if he was not in a position to
look ahead and was wholly neg
lecting his plain duty in this par
ticular, the railroad was not re
sponsible for an accident caused
thereby. The decision plainly vio
lates a principle in law as old as
time, namely, that the principal is
responsible for neglectful acts of
his agent.
In commenting upon the above
decision Judge Maxwell, dissent
ing from the opinion of the major
ity, said: "In my view great in
justice is done by the reversal upon
the ground stated. The judgment
of thu district court against the
railroad should have becu af
firmed."
A Homestead Case. K-'
In the 12th Neb., page 2S5, the
case of Vance vs. the B. & M. Ry.
Cc, is reported. This case was
tried in the district com t of Seward
county. Facts in the case arc as
follows: In 1S65 one Bingamon
homestcaded a quarter section of
land in Seward county. He relin
quished his grant in 1S70. One
Vance homcsteaded the same tract
in 1S71. This entry was cancelled
by the commissioner of the general
land office May 13, 1S73, because
of conflict with the grant of lands
to the B. & M. R. R. Co., by act
of congress, 1862-1864. The lo
cation of the road was made June
15, 1005, and the odd numbered
sections along the line were with
drawn from market on account of
the grant February 3, 1S66.' In
1S75 thecompany received a patent
for the lands granted to it by the
United States government. After
the cancellation referred to above,
Vance cntcicd into a contract of
purchase with the company in 1S73.
After this the commissioner of gen
eral land office in 1S78 reverses the
decision of 1873, cancelling Vance'sj
homestead entry, when Vance
made final proof and lcceived a
patent for said tract of land, dated
April 9, 1879. This action was
commenced October 9, 1879, Vance
praying for a de:rce declaring
patent to the railroad company to
bc.null and void.and that'tlie title to
said land to be settled in him and
for other and further relic. On a
trial the district court found in
favor of the railroad company, de
claring a patent to Vance to be
null and void and adjudged same
to be in the railroad company and
that the railroad company have
possession of the land. Vance
carried the case to the supreme
court, where the judgment of the
district court was affirmed favor
ing the railroad and ousting Vance
from possession of the hind without
making any provision for paying
him for the improvements he had
placed there during tho time he
held his patent from the govern
ment. Maxwell filed a dissenting
opinion in this case, showing very
clearly that by all construction al
right, justice, honesty and fair
dealing, that the plaintiff Vance
was entitled to payment for the
improvements which he had placed
upon the land.
Anothorllomostend Caso.
Reported in the 14th Neb., page
120, where one Hiram P. Rider
was ousted by the B. & M. railroad
company from a pre-emption he
had taken and fully paid for.
Maxwell filed a dissenting opinion
where he says: "In the case at
bar the entire tract was entered
aud paid for, (before it was built)
and if the defendant (the railroad
company) is mt required to pay
damages, the .,tizens and not the
government must bear tho loss
To me this seems like rank in
justice and 1 enndot give my con
sent to such a construction of the
law. From the necessity of tho
case tho railroad company ia per
mitted to choose the most avail
able route for its Hue of road and
the rights of individuals aru so far
subservient to the public welfare,
but any roalestate necessary for a
right of way may be appropriated,
to its use, compensation being
made therefore, but the courts by
110 strained construction of the
language of the statute should de
prive tlio owner of that which i
justly his due." 1
Rnllroadu vs. Farmore. .
In the 14th Neb., page 4C3, is
reported the case of the B. & M.
railway company, vs. Becbe. This
caso was tiicd in the district couit
of Seward county. It was a suit
to recover value of damage to
timber by fire caused by the negli
gence of tho railroad employes.
Tho testimony showed that the
damage amounted to about five or
six bundled dollars. It wan re
served by a majority of tho court
for error in allowing a witness to
state "his opinion or estimate of
the amount of damage to tho
owner of a tract of land or to the
land itself caused by a fire running
through it." Majority of the court
held that this was reversible error,
that is, the witness making the
statement to the jury that in his
opinion the damage amounted to
$500. Judge Maxwell filed a dissenting,
opinion, lie says, the witnesses
called to testify as to the amount
of damages, were shown to be ac
quainted with the value of the land'
and could define as to the amount
of damage sustained, from their
own personal knowledge. Opin
ions of such witnesses are admissi
ble not as being the testimony ofi
experts, but as being founded on
personal knowledge of the subject.
Such opinions become to a certain
extent facts and are the most satis
factory evidence that can be given
as to the amount of damages.
Maxwell cites many authorities on
this point, but his reasoning was
all to no avail. The majority of
the court was in favor of the rail
road company; the judgment of.
the jury was reversed and the man
was sent from the court room with
out any compensation for his loss
of timber, which was admitted by
all parties as clearly due to the
neglect of the employees of tho
railroad company. ,
: :
Railroads Can Kill Mod. "
In tho following case Swindell
vs. the C. B. & Q. Ry. Co. (62 N
V. 1 103) the train was run back
ward at a high and unlawful rate
of speed, about 25 miles an hour,
from the fair grounds near Lincoln
to that city and ran over and killed1
the husband of the plaintiff. No
signals seem to have been given,
nor was anything on the back of
the train, then running for tho
frontto clear obstructions.fronTtho
track; nor any excuse for the high
rate of speed, but the court held,
that the neglect of the deceased
was the proximate cause of his
death, and hence that his widow
could not recover.
V
Tho Rocord or tho 0. B. & Q.
In the supreme court since 1890,
when Norval became a member,
commencing with volume 30, Ne
braska reports, to the present
time. The C. B. & Q. R. R. has
been a party to 26 suits and has
come out victorious in 19, while
the people have won but 7. Those
that were decided against the com
pany generally Involved small
amounts; while those tct aside
amount to a great many thousand.
Prohibitionists Should Vote For
Maxwell.
No prohibitionists claims there
is an' chance to elect the candi
date of that party. There is no
cleaner or more temperate man in
Nebraska than Samuel Maxwell.
His election will be a victory for
good government, and that every
prohibitionist certainly desires. It
is understood that the prohibition
candidate for judge is himself
favorable to Maxwell arid would
like to see him elected. Why
cannot his followers rise to thu
same high plane and, throwing
aside the question of party for one
year, help to free the state from
the corporation yokel
That frisky young man, John
Sherman, who is two years older
.than Judge Maxwell, is bobbing up
in unexpected places all over the
country. The Associated press re
ports him one day in New York,
the next in Washington and thu
next in Ohio. Republican papers
never mention that he slid down
a cellar door with Noah.
When iu Lincoln call on .Miller fn
Paine, tho popular dry goods inerebautH.
Write for catalogue. Prices guaranteed
as low as any 111 the city for the quality
of goods,
