116 Neb. 487 | Neb. | 1928
This is an action for damages by reason of a collision between an automobile and a street car. From a verdict and judgment thereon against it, the defendant appeals.
The collision occurred at the intersection of Binney and North Twenty-fourth street in Omaha, at 6:30 or 7 o’clock on the evening of May 10,1927. Plaintiff and Knud H. Nissen, with two young women, were on their way from Blair to attend the movies at Omaha. Nissen owned the Ford
Plaintiff alleged, and the court submitted to the jury, three charges of negligence, viz.: (1) Excessive speed of the street car, (2) lack of adequate-warning, and (3) lack of proper lookout. Defendant denied all negligence, and pleaded that the plaintiff and the driver of the automobile were negligent, and that plaintiff’s injuries were the result
In its brief the appellant presents nine assignments of error. The first assignment is that the court erred in permitting Nissen, the driver of the automobile, to testify that, when he first observed the street car, it was running “about 30 to 35 miles an hour.” Nissen testified that, when he first saw the street car, his automobile was in the intersection and the front end of it was within four to six feet of the west car rail and the front end of the street car was about 30 feet north of the north curb line of Binney street. He had qualified generally by showing his experience as a driver and his ability to estimate the approximate speed of a moving car. We have held that “a witness who sees a moving car, and possesses a knowledge of time and distance, is competent to express an opinion as to the rate of speed at which the car is moving.” Omaha Street Car Co. v. Larson, 70 Neb. 591; Pierce v. Lincoln Traction Co., 92 Neb. 797; Oakes v. Omaha & C. B. Street R. Co., 104 Neb. 788. While the writer concedes that it is a close question but thinks this testimony was admissible and that its weight was for the jury to determine, others of our number think the driver had so little time at best to ob-. serve the street car and was so busy handling the automobile that his opportunities to judge of the speed of the car were too slight to form the basis of an opinion as to its speed in miles per hour. However, the majority agree that the admission of this testimony ought not to be considered so prejudicial to the defendant as to constitute reversible error in view of the other testimony as to excessive speed. There was testimony from which the jury could have found that, from the time Nissen first observed the street car and from the time the motorman first saw .Nissen’s automobile until the street car actually stopped, it traveled from a point 30 feet north of the north curb line of Binney street to a point about 75 feet south of the .south curb of Binney .street, a distance of about 135 feet. It might also be found as true that during all this time
The second assignment of error is to the effect that the court erred in not sustaining defendant’s motions for a directed verdict. The argument proceeds on the erroneous theory that the testimony as to the speed of the street car is eliminated, and that the plaintiff has failed to prove any negligent operation of the street car. This assignment is without merit, as it is already evident that there was evidence competent for the jury to consider in the matter of the charge of negligence based on the alleged speed of the street car.
The court did not submit to the jury any instruction on the doctrine of the comparative negligence of plaintiff and defendant. In its opening statement of facts in the beginning of its brief, the appellant says that the doctrine of comparative negligence does not apply to the case; but several of the assignments of error and much of the brief are on that subject. These arise in the arguments concerning the instructions given by the court and concerning instructions tendered by the defendant and refused. It may well be said here that the instructions of the court were such as are founded on rules well established in this court and such as are conventionally given in cases where there is no negligence of both plaintiff and defendant to be compared and determined by the jury. The appellee argues that there was no such negligence shown in the evidence as between the two parties to the action and that it would have been erroneous if the court had given the jury an instruction as to comparative negligence. In this respect it is true that the answer of the defendant joins the driver and the plaintiff in charges of contributory negligence in approaching the intersection
■ Appellant argues that it was the “rapid speed at which .the automobile was being driven, not by any force from the street car,” that produced the jar or shock when the right rear wheel of the automobile struck the curb on the east side of Twenty-fourth street. When we read the evidence and learn that the automobile was headed a little north of east when the collision occurred and that the right rear wheel struck the curb about 75 feet southeast of the point of impact, and that when the wheel struck the curb the automobile was facing west of north, we wonder if the writer of the brief wants us to conclude that the driver of the automobile reversed his gears at or after the collision, and negligently drove backward at “a rapid speed” until the rear wheel struck the curb? Inasmuch as plaintiff was not thrown from the automobile until after it struck the curb in the fashion stated, we find ourselves unable to assent to the appellant’s proposition that the speed of the automobile was the proximate cause of plaintiff being thrown from the car and injured.
While numerous assignments have been set up in the brief, some of them are so interwoven with what we have said that they need not be discussed separately. We think what we have said covers all of them either directly or by implication. The questions of fact were submitted to
Affirmed.
Note — See Trover and Conversion, 38 Cyc. 2009 n. 16, 2012 n. 37, 2024 n. 32, 2079 n. 85.