96 Neb. 539 | Neb. | 1914
This is an action to recover damages in the sum of $25,000 for alleged negligence resulting in the death of William B. Meek. Defendant is a corporation conducting a telephone business. It uses the streets of Lincoln for underground conduits and wires. The city is crossed from north to south by Twenty-seventh street. Along the west side of that thoroughfare, two feet or more from the curb, defendant dug a trench across intersecting streets R and S, throwing earth from the excavation on the east side, thus creating an irregular, sloping embankment about two feet high. A street railway with double tracks occupies 15 feet in the center of Twenty-seventh street, where there is a paved roadway 40 feet wide. The space between the embankment and the west rail varied from one foot to three feet. Meek was a locomotive fireman on the Chicago, Burlington & Quincy Railroad. While on his way to his work in the- darkness, a few minutes before 6 o’clock on the morning of January 3, 1911, he fell from the embankment, and was run over by a street car and fatally injured. His wife, as administratrix of his estate, is plaintiff. In a petition stating a cause of action it is alleged, among other things, that defendant was negligent “in creating the said dangerous embankment in said public street, and in causing and permitting the same to be and remain in said street an unreasonable and unnecessary length of time, and without any guards or signals to warn and protect persons using said street, and without constructing and maintaining safe passageways over said ditch and through said embankment.” Defendant denied negligence on its part, and pleaded that Meek’s injuries, if they occurred while he was near to or attempting to cross the trench and the embankment, resulted from his own negligence. The jury rendered a verdict against defendant for $12,000. To prevent the granting of a new trial plaintiff filed a remittitur for $3,000, and, from a judgment in her favor for $9,000, defendant has appealed.
In making the excavation and the embankment defendant acted under a license obligating defendant to conform to city ordinances making it unlawful to permit the excavation to remain open longer than was actually necessary, and requiring licensee to guard the excavation carefully while being made or used, and to maintain such barricades, guards, lights and signals as will protect the public from injury or loss. As early as Thursday defendant tore up the pavement, obstructed a portion of the street and left the excavation open, knowing that work would be suspended Sunday and Monday; the former being the first day of the new year and the latter being observed as a holiday. The collision occurred before daylight on Tuesday morning following. Prom the evidence it cannot be held, as a matter of law, that the excavation, with the resulting embankment, was not allowed to remain open longer than was actually necessary.
Whether there was negligence on the part of defendant in permitting the excavation, with the resulting embankment, to remain open longer than was actually necessary,
A formidable argument is directed to the proposition that contributory negligence of Meek was the proximate ■cause of his death, and that therefore there was error on the part of the trial court in refusing a peremptory instruction requested by defendant. On this branch of the case, the théory of defendant seems to be that Meek knowingly ran headlong from the sidewalk into the moving car. It is insisted that he was warned by the cluster of lanterns at the manhole and by the red lights along the trench; that he crossed piles of brick and sand taken from the pavement and ran onto the embankment with a momentum which hurled him against the car. This contention is overcome by the fact that a different deduction may properly be drawn from the evidence. Even if defendant is not mistaken in assuming Meek approached the •embankment from the sidewalk, that fact alone would not establish contributory negligence as a matter of law. Knowledge of existing conditions in the street does not alone preclude a recovery. Want of such care as a prudent man would exercise in view of the danger is the test ■of contributory negligence. The question is usually one for the jury. Nicholson v. City of South Omaha, 77 Neb. 710; City of Beatrice v. Forbes, 74 Neb. 125. This assignment is likewise overruled.
Complaint is also made because an excessive recovery was permitted and sustained. Meek was 27 years old and
In view of the conclusions reached on the questions discussed, there was no prejudicial error in giving or in refusing instructions.
No reversible error has been found in the record, and the judgment is
Affirmed.