108 Neb. 481 | Neb. | 1922
This is an action against the city of Omaha and one Ernest Moschel to recover damages because of certain alleged acts of negligence by an employee of the city in driving a motor fire truck upon Eighteenth street approaching Cass street in the city of Omaha, at 18 miles an hour, and failing to have said truck under proper control and management, and failing to slacken the speed of said truck as it approached the intersection of said streets, whereby said fire truck ran into an automobile driven by one Morris Johnson, which had been thrown into and against said fire truck by another automobile traveling on Cass street, driven by the defendant Ernest Moschel, coming into collision with the automobile of said Johnson, whereby said Johnson, by the collision with the said fire truck, was thrown from his automobile and killed.
The city denied each and all the acts of negligence alleged against it; alleged that the death of deceased was not due to any want of care on the part of its employees in charge of said fire truck, and that the same was not the proximate cause of the injury to the deceased. The city further alleged that the deceased carne to his death solely as a result of negligence and want of care both on his part and upon the part of the codefendant, Moschel. It further alleged that the circumstances of the collision and throwing of deceased under the truck of the city were; such, and occurred in such a manner, as to make it impossible, for .the city to prevent whatever injury the deceased may have sustained on' account of collision with its fire truck. Trial was had to a jury resulting in a verdict of $6,800 against both the city and said Moschel. The city appeals from the judgment rendered against it thereon.
The fire truck was returning to its station from a repair shop. It was not answering an emergency call.
On cross-examination he testified as follows: “Q. I believe you stated a moment ago you were just a little to the north of the north line of Cass street on the west? A. Well, I was about five or six feet from' the edge of the curbing. *'* * Q. You were going south? A. South. * * * Q. In your judgment, what was the rate of speed of the Ford car? A. About 18 to 20 miles an hour. Q. The Ford car passed you immediately to your left? A. Yes, sir. Q. How far away from the west curb of Eighteenth street? A. Well, I should judge that he was not over 3% feet away from the curbing. * * * Q. Who got onto the intersection first, Moschel, or the Ford car? A. Mr. Johnson — the
Appellant’s assignments of error Nos. 3 and 7 complain of the withdrawal from consideration by the jury, by instruction of the court on its own motion, of the entire testimony of a Avitness called by plaintiff. The plaintiff, during the trial of the case, moved the court to withdraw the testimony of this witness. There was nothing in his testimony favorable to the defendants or either of them. If it was-favorable to any party to the suit it was to the plaintiff. Biit it varied so from the other testimony of plaintiff’s witnesses that it was unreliable. If it Avas error to strike out the testimony of this witness and instruct the jury to disregard the same, it was error Avithout prejudice.
The other assignments of error relate to the giving of instructions by the court on its own motion and refusal to give instructions requested by the city. The court on its own motion instructed the jury on the doctrine of “the last clear chance,” permitting the jury to base a verdict for plaintiff thereon. The court also gave to the jury an instruction authorizing a verdict against the city on the basis of our comparative negligence statute. The court refused to give an instruction requested by the city telling the jury that there was no question to submit to them under the doctrine of “the last clear chance.” It also refused an instruction requested by the city telling the jury that no-recovery could be had against the city on the basis of comparative negligence between the deceased and the driver
The assignments of error relating to the giving and refusing of the foregoing instructions, together with the assignment that the verdict is not supported by the evidence, require the same consideration and discussion of the evidence.
One question to be determined is whether there is evidence of negligence on the part of the driver of the truck which was the proximate cause of the collision of the track with the Johnson automobile. The negligence on the part of the driver of the truck, and the only negligence relied on in the brief of appellee, is, he “drove said truck at a high and dangerous rate of speed, and beyond the ordinance limit, and contrary to the statute of the state of Nebraska, ' * * to wit, 18 miles an hourthat he “negligently and carelessly failed to have said truck under proper control and management at said crossing, and negligently and carelessly failed to keep a proper lookout for other vehicles using said crossing, and negligently and carelessly failed to slacken the speed of said truck as it approached said crossing, and negligently and carelessly failed to stop said truck before it ran over and killed the said Morris Johnson.” The only evidence offered in support of said allegation of the petition was that relating to the speed of the fire truck and the distance it traveled after hitting, the Johnson car. Appellee in her brief says: “The proximate cause of Johnson’s death was the unlawful speed of the fire truck.” The accident happened October 25, 1919. The statute (Laws 1919, ch. 222, sec. 28) in force at that time did not prescribe the rate of speed on approaching or crossing the intersection of streets in a city. It provided: “Within any city or village no motor vehicle shall be operated at a rate of speed greater than is reasonable and proper, having regard Of the traffic and use of the road and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person.” The ordinance
“When a driver of a motor vehicle exceeds the speed limit provided by statute, such driving is not-negligence per se, but is to be considered by the jury with all of the evidence and circumstances of the case in passing on the question of negligence.” Lady v. Douglass, 105 Neb. 489.
It is also held that a rate of speed so forbidden affords reasonable grounds for inferring negligence. Stevens v. Luther, 105 Neb. 184; Omaha Street R. Co. v. Duvall, 40 Neb. 29. The speed of the fire truck did not constitute negligence per se. The condition of the traffic and road and the facts and circumstances connected with and accompanying the accident must, therefore, be shown by the evidence to be such as to constitute the speed of 18 miles an hour, under such circumstances and conditions, negligence, before it can be found that such speed of the fire truck was negligence on the part of the driver thereof. The facts and circumstances and condition of the traffic shown by the uncontradicted evidence in this case are; that the deceased was driving his automobile south on the right-hand side of Eighteenth street at about 18 miles an hour; the fire truck running north on the opposite side of said Eighteenth street at 18 miles an hour, in the block south of where the deceased was driving his car, the fire truck running just east of the center of the street on account of
Appellee- argues that, had the fire truck been going slower, it would have been far enough away from the Johnson car after it had been thrown into its course for the fire truck to have been stopped and avoid the collision. It may likewise be said that, had Johnson been traveling slower and not crossed the intersection of Cass street at a speed exceeding 12 miles an hour — the ordinance rate — he would not have reached the south side of Cass street in time to have been hit by Moschel’s car. If the speed of the fire truck was negligent, that of the Johnson car was equally negligent. Furthermore, if Johnson, on approaching Cass street, had looked to the west and kept a lookout for cars going east thereon, he would have seen Moschel’s car coming at a rapid rate. The plat introduced in evidence shows that he could have seen from a point 100 feet north of the south curb of Cass street for a distance of at least 100 feet to the west of the west intersection line of Eighteenth street, had looked to the west and kept a lookout for cars going east thereon, he would have seen Moscheks car coming at a rapid rate. The plat introduced in evidence shows and saw Moscheks car, he was also negligent in crossing Cass street. These acts of negligence on Johnson’s part contributed to cause the collision with th'e fire truck. No reasonable mind would say that the negligence of Johnson
“If, on the trial of an action ‘brought to recover damages for injuries to a person or to his property caused by the negligence of another,’ plaintiff is found to be guilty of negligence directly contributing to the injury complained of, he cannot recover, even though defendant was negligent, unless the contributory negligence of plaintiff was slight and the negligence of defendant was gross in comparison therewith; and if, in comparing the negligence of the. parties, the contributory negligence of the plaintiff is found to exceed in any degree that which, under the circumstances, amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, the contributory negligence of plaintiff, however slight, will defeat a recovery.” Morrison v. Scotts Bluff County, 104 Neb. 254.
There were no conditions shown by the evidence which would warrant a comparison by the jury of negligence between the deceased and the driver of the fire truck. The court erred in giving its instruction allowing the jury to make such a comparison. It also erred in refusing to give the instruction requested by the city that no recovery could be had against the city on the basis of comparative •negligence.
Unless there was evidence tending to show, and from which reasonable minds might believe, that the speed of the fire truck was the proximate cause of the death of Johnson, the verdict of the jury is not sustained by the evidence and the court erred in refusing to direct a verdict for the city.
“A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with, but independent of, his acts, not flowing therefrom, and not reasonably in the
“An injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable, nor is an injury that is not the natural. consequence of the negligence complained of, and would not have resulted from it, but for the interposition of some new, independent cause that could not have been anticipated.” Chicago, St. P., M. & O. R. Co. v. Elliott, 5 C. C. A. 347.
“The concurring negligence of another cannot transform an act of negligence which is so remote a cause of an injury that it is not actionable into a cause so proximate that an action can be maintained upon it. It cannot create a liability against one who does not legally cause it, or make an injury the natural and probable result of a prior act of negligence which was not, or would not have been, such a result in its absence.” Cole v. German Savings & Loan Society, 59 C. C. A. 593. The last two cases are cited with approval in Spratlen v. Ish, 100 Neb. 844.
Applying the foregoing rules of law to the facts uncontrovertedly established in this case, was the death of deceased the natural, probable, reasonable and proximate consequence, under the circumstances of this accident, of the speed of the city’s fire truck? A new and efficient cause, not set in motion by the driver of the fire truck, and not connected with, but independent of, his acts, not flowing therefrom, is shown by the evidence to have intervened. Such intervening cause could not reasonably in the nature of things be contemplated or foreseen by the driver of the fire truck. The casting of Johnson in his automobile directly in the course of, or against, the fire truck by the said Moschel’s car was that new and efficient intervening cause. No reasonable mind could arrive at the conclusion that the driver of the fire truck, observing the said approach of said cars, could anticipate or foresee
The judgment against the city, appellant herein, is reversed and vacated, and this cause, as to the city of Omaha, Is dismissed.,
Reversed and dismissed.