105 Neb. 196 | Neb. | 1920
Plaintiff was driving a heavy automobile hearse across Thirteenth street at Capitol avenue in Omaha about 9 :15 in the evening. A collision occurred at the intersection between a street car and the hearse, and plaintiff was injured. This action was brought to recover damages for such injuries. Plaintiff recovered, and defendant appeals.
The contention of the defendant is that the plaintiff was driving the hearse on the wrong side of the street without lights and at an unreasonable rate of speed, and that he drove it into the front end of the street car with such impetus that it knocked the front wheels of the car off the track. There is a direct conflict in the evidence as to whether the lights of the automobile hearse were burning before the collision. Such conflict also extends as to the rate of speed of both hearse and street car. The jury had the witnesses before them, and were better qualified to judge of the truth of their accounts of the accident than this court is. Unless some prejudicial error has occurred in the conduct of the trial, the verdict cannot be disturbed.
An ordinance of the city of Omaha, at that time, limited the rate of speed of street cars, in the portion of the city where the accident occurred, to 10 miles an hour. Other ordinances provided that every automobile should have at least one lighted lamp, showing white, visible at least 200 feet in the direction in which the automobile is proceeding, and should also exhibit at least one red light vis
The court instructed the jury, in substance, that the provisions of this ordinance and of the statute mentioned are valid and reasonable provisions, and, if either or both of the parties to this action violated the statute or ordinance, “you are at liberty to take any such violation into consideration, along with all the other evidence in the case, in determining whether or not the party so violating the same was chargeable. with negligence in and about the accident.”
The first error assigned is with respect to the giving of this instruction. It is argued that the court lost sight of the distinction between the violation of a state statute and the violation of a city ordinance; that a violation of the statute with reference to speed of motor vehicles constitutes negligence per se, and that the violation of such an ordinance is not negligence per se, but is only evidence of negligence. The courts are hopelessly divided upon the question whether the violation of a statute or ordinance designed for the protection of the public constitutes negli
It is assigned that the court erred in instructing the jury that, if they found from the evidence that the motorman “could have seen, in the exercise of ordinary care and diligence, the hearse in time to have avoided the collision, and failed to do so, then the defendant would be guilty of negligence.” Such an instruction was approved by the court in Omaha Street R. Co. v. Duvall, 40 Neb. 29 and Lucas v. Omaha & C. B. Street R. Co., 104 Neb. 432. It is also upheld in Memphis Street R. Co. v. Haynes, supra, and other cases. The rule requires no more than ordinary care and diligence on the part of the motorman in keeping a lookout.
Defendant requested an instruction that, if plaintiff failed to have his hearse under control as it approached the tracks, and, if by care he could have avoided the accident, he cannot recover, which was refused. The defect in this is that it failed to take into consideration the statutory doctrine of comparative negligence. The plaintiff might have failed in some or all the respects mentioned in the instruction, and yet if the negligence of the defendant was gross, and the plaintiff’s negligence was slight as compared therewith, he would still be entitled to recover. This instruction was properly refused, but the idea was given in another instruction with respect to contributory negligence and the rule of comparative negligence. The instruction was not so full and specific as that tei dered; but, in view of common knowledge as to the need of care and caution on the part of the drivers of motor vehicles at intersections, we think it was sufficient.
It is also urged that the physical facts and the photographs of the street car in evidence demonstrate that it was the plaintiff’s negligence which caused the accident; that the facts that the front of the street car was broken at one side and its front wheels forced, from the track show conclusively that plaintiff drove the hearse into the car. The testimony on behalf of the plaintiff is to the effect that, when plaintiff looked south for the second time, he saw the street car so close to him that it was impossible to avoid a collision; that in order to avoid it he swerved his
Complaint was made of other portions of the charge to the jury; but, when it is taken as a whole, we find it not subject to the criticism made. It seems apparent to us that both parties were negligent in greater or less degree, and whether plaintiff’s negligence was slight in comparison with the gross negligence on the part of defendant was for the jury. While we think a verdict in favor of defendant would be supported by the evidence, we are also of the opinion that it is sufficient to sustain the verdict rendered.
Affirmed.