79 Neb. 381 | Neb. | 1907
On a former appeal taken by the Omaha Street Railway Company the judgment was reversed and the cause remanded on account of misdirection of the court. 74 Neb. 764. A retrial of the case resulted in a judgment for the defendant, and the plaintiff has appealed, alleging error in the instructions given by the court and in refusing instructions asked by the plaintiff. A statement of the case will be found in the opinion of Mr. Commissioner Albert on the former appeal, and the facts need not again be repeated here. It is conceded that the accident, took 'place at what is known as the “blind switch,” just north of O street, in the city of South Omaha. The evidence is undisputed that the plaintiff was standing on the running board of the rear or trailer car, and his claim is that, on reaching the blind switch, the car was derailed, throwing him to the pavement and causing the injuries for which he brings suit. The plaintiff testified that both the motor and trailer car were crowded at the time he boarded
In Spooner v. Brooklyn City R. Co., 54 N. Y. 230, 13 Am. Rep. 570, it is held: Assuming that deceased had a right to be safely carried by appellant to the stockyards, he had a right to suppose that he would not be assigned to a place of extra hazard or peril, and that, to whatever place assigned, reasonable care would be exercised to protect him from injury. In City R. Co. v. Lee, 50 N. J. Law, 435, the court said: “It certainly cannot be contributory negligence that he, at the invitation of the defendant,
If the plaintiff in this case had been injured by a passing vehicle, it is possible, although we have some doubt on the proposition, that he might be charged with contributory negligence, but he certainly cannot be so charged Avhen he occupied the place by the direction of the conductor in charge of the car, if the accident occurred from the operation of the train or from defects in the car or the tracks. The ninth instruction of the court is in the following language: “You are instructed that, if you believe from the evidence that plaintiff attempted to get off the car Avhile it was in motion and fell with his knee upon the pavement, he cannot recover in this action, and your verdict must be for the defendant.” The plaintiff testified that he was thrown from the foot board by the car being-derailed at the blind SAvitch near O street. The witnesses Oldman, Jodeit and Mrs. Tobin each testify that the trailer jumped the track at that point. We have searched the record in vain for any evidence tending to shoAv that the plaintiff of his own volition got off the car while it was in motion. The instruction assumes that there Avas evidence to go to the jury, and submits to them a fact of which no evidence exists, and this, under the repeated holdings of this court, was error. The rule is so familiar that a citation of authorities is unnecessary. Other alleged errors need not be discussed, as the case will have to be reversed and remanded on account of those already noticed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for another trial.
Reversed.