The independent. [volume] (Lincoln, Neb.) 1902-1907, 1903-10-08
Why He Should Help
Elect Judge Sullivan to
the Supreme Bench.

ward for adoption or rejection. II
adopted by two of the supreme judges
the commissioners opinion becomes
decisive.
The case OF c., B. e q. r. r. Co. VS..
Martelle, 81 N. w Rep. 364, shows ex-
actly where the two candidates stand
in the inevitable and irreconcilable
conflict which is constantly going on
between the people and the railroads.
There Is no mistaAlng Judge Barnes
prediction in favor of the railroad;
there is no mistaAing Judge Sullivan's
attitude in favor of the people. Let
us investigate this case:
Il. Fl. Martelle had on January 8,
1885, bought a ticket and boarded
freight train at Schuyler, Neb bound
for Edholm in Butler county. When
the train reached Edholm 1t slowed up.
but did not stop. Martelle, fearful OF
being carried to the next station.
jumped OFF, and was injured. He sued
for IS 900 damages. The case WAS tried
before Judge Bates in the district court
OF Butler county. TL3 jury awarded
him $4,000; and, OF course, the rail-
road company brought the case on err
rOr to the supreme court.
1t was assigned for hearing to de-
partment number 2, and upon Com
missioner Barnes devc we'd writing the
opinion. Commissioner Pound con-
Cured, and Commissioner Oldham dis
sented, each In separate opinion.
When 1t reached the supreme court,
Judges Sedgwick and Hocomb ap-
proved the Barnes opinion, while
Judge Sullivan held with Commits
sioner Oldham and filed dissenting
opinion. In this dissenting opinion
Judge Sullivan says:
"In any view Of the case, I think
the trial court did not err in submit
ting the question of contributory neg
| ligence 10 the jury.~s-There was, Of
course, some risk In getting off the
train while in motion, but the act
was not SO obviously rash and fool
hardy as to amount necessarily to
criminal neglige zee.
Criminal negligence Is a conven-
lent phrase to indicate that the de-
gree of care required by the passenger
is small. AS defined by this court, it
means such gross negligence as
amounts to a reckless disregard of
ones own safety, and willful indiffer-
ence to the consequence liable to fol-
low
I'm my judgment, 1t was for the jury
to determine, from its knowledge OF
men and of the motives that influ-
ence and control human conduct whe-
ther the act of the plaintiff was un-
der all the circumstances, within the
definition quoteu. To say that
strong, active and experienced man,
who. to cvoid being carried beyond his
destination, gets off slowly moving
train,- or train moving with small
velocity, is in every case foolishly
needless Of consequences, and will
fully Indifferent to his personal safety.
IL to assert what every man accus-
toned to travel knows from his own
experience and observation to be un-
! true.
II readily concede that, from the
facts which the evidence in the rec
| ord tends to prove, criminal negli-
gence might be reasonably inferred,
but deny that the inference is a
necessary and iEevitA one. If the
plaintiff had not attempted to alight,
and had gone on to the next station.
| | think his conduct would be generally
regarded as unusual. 1t would prob
ably stamp him in the opinion of
most people as Oyercautious and
somewhat deficient in ordinary cour-
age.
1T would perhaps be better that pas
sengers should submit to the incon-
yenience of being carried beyond their
destination. rather than take tho
chance of being injured by alighting
from moving train; but we are deal
ing now with conditions, and not with
! theories.
1T is question of what men act
ually do In the situation in which the
plaintiff was placed by the fault OF
the company's servants, not what tho
| theorists think they ought to do.
1T seems to m, perfectly plain that
the criterion by which the plaintiff's
conduct has been tried in this court
| Is a false criterion.
THE standard man set up by the
majority Barnes, Pound. Sedgwick,
w.