Parkins v. Missouri Pacific Railway Co. ( 1904 )

Sedgwick, J.

In the opinion of Mr. Commissioner Hastings, 4 Neb. (ITnof.) 13, the conclusions reached in the former opinion are discussed and, with one exception, are approved. The commissioner concluded that instruction numbered five, given by the court upon its own motion, ivas erroneous and required a reversal of the judgment below. In the argument before the court, this conclusion of the commissioner was mainly the subject of discussion. We have, however, reviewed the briefs and record, and have no doubt in regard to the correctness of the conclusions reached in the first opinion, 4 Neb. (Unof.) 1, unless it be with respect to the matter pointed out by Mr. Commissioner Hastings. The objection made to the 5th instruction is that it required the plaintiff to prove not only that the gravel in question was not refused by the defendant because it ivas unsuitable, in the judgment of its superintendent, for ballasting its railway, but also that “the ballast furnished under such contract was suitable for such purposes.” In the next prior instruction the jury were told:

“If you .believe from the evidence that the gravel which was delivered to the defendant was, in the judgment of the superintendent of the railway company, not suitable for ballasting purposes as provided in the contract, and that the superintendent refused to take any more for such reason, and that the plaintiff was prior to October 5, 1895, so notified, then you should find for the defendant.”

So that by the 4th instruction the jury were told under what circumstances their verdict should be for the defendant, and by the 5th instruction the circumstances are stated under which the verdict may be for the plaintiff. By these two instructions, taken together, the jury must have understood that, unless the plaintiff proved that the gravel furnished by him under the contract was suitable for ballasting for the defendant’s railway, he could not recover. The -question- is Avhether this is a correct statement of the law.

There was evidence that the plaintiff urged the company to accept the gravel; and that the company, by its officers and agents, other than the superintendent, in ansAver to these requests, gave various reasons for not accepting the gravel at that time, but made no objection to the gravel as unsuitable for ballasting purposes. The defendant insists that, as these letters were not Avritten by the superintendent, upon whose knowledge and opinion as to the quality of the gravel the matter depended, this evidence is of no importance. It is not, liOAvever, contended that these letters were incompetent as evidence; and, having-been properly received, -their weight and bearing upon the question at issue Avas a matter for the jury to determine. The testimony of the plaintiff himself that no objection Avas made to the quality of the gravel, and that the refusal to receive it was placed upon other grounds, although coming from a witness highly interested in the event of the suit, is so far corroborated by the evidence referred to, and other evidence in the record, as to require this question to be fairly submitted to the jury.

The trial court in another instruction told the jury plainly that, if the gravel offered was, in the judgment of the defendant’s superintendent, unfit or unsuitable for ballasting defendant’s railway, then the defendant had the right to refuse to accept the same; and again in the 2d instruction:

“The defendant must prove that he objected and refused to take the gravel as and for the reason he alleges, and so notified the plaintiff prior to October 5, 1895.” If this instruction is correct, then, if the defendant did not prove this, that is, if the evidence taken altogether did not show it, the plaintiff would be entitled to recover, and it would be wholly unnecessary for the plaintiff in addition to this fact to also prove that the gravel was, in fact, suitable for ballasting the defendant’s railway. The defendant, of course, could not, during all the time the question of receiving the gravel was pending, lead the plaintiff to believe that, in the judgment of the superintendent, the graved was suitable by raising other objections and giving other reasons for not receiving it, and, not having at any •time notified the plaintiff that the gravel was unsuitable, defend upon that ground when sued. This would be the; rule even though the fact were that the graved was unsuitable for the uses for which the defendant desired it. If the jury were satisfied from the evidence that the defendant had not refused or objected to receive the gravel on the ground that it was unsuitable, in the judgment of its superintendent, the verdict should have been for the plaintiff. If it was established that the defendant had objected and refused to receive the gravel because, in the; judgment of its superintendent, it was unsuitable, then the question might be Avhether this judgment of the superintendent Avas reasonable and based upon sufficient grounds; and upon that question it Avould be competent to show what the fact was in regard to the quality of the gravel and its suitableness for the purposes for which the. defendant intended it.

We think that the reasoning of Mr. Commissioner Hastings upon this point is sound, and the conclusion that instruction number five is erroneous is right. The judgment of reversal is therefore adhered to.

Reversed.