84 Neb. 595 | Neb. | 1909
Action for damages caused by tbe killing of plaintiff’s husband by the negligence of defendant railway company’s employees. The defense is a general denial and contributory negligence.
Taking all the testimony together, we think a fair inference is that the deceased' was about to cross the tracks on thá west side of Saunders avenue when his attention was attracted to the four cars moving in front of him to the west on the main line; that he could not see the approaching cars from the east until he was on or close to the track; and that, as soon as the way was clear in front by'the four cars passing, he stepped upon the elevator track, his attention was called and his progress arrested by Powell’s cry, when he was immediately struck down by the moving cars. All the evidence shows that the
Complaint is made that the court allowed an ordinance of the city regulating the speed of trains, etc., to be read in evidence without proof of its publication. Even if the publication were not proved properly, which we do not decide, we think the admission of this ordinance could not possibly prejudice the defendant. The fact that such an ordinance did or did not exist under the circumstances of this case could not affect the question of negligence. It was the fact of the defendant moving its cars in the manner that it did in such a thoroughfare, without greater care to protect persons passing along the street, that furnished the evidence of negligence, and it did not require an ordinance to establish it. Moreover, the answer contained what this court has in several instances held to be an admission, a qualified denial to the effect that, “if the ordinance was passed and in existence, it was unreasonable” and void. Evidence of a subsequent ordinance
The main point made is that the deceased was guilty of contributory negligence in not looking and listening as he approached the track. Of course, this contention is based purely on inference. No one saw him as he approached the track or saw him step between the rails; but it is argued that, since it is proved that he could see and hear, and that his view was unobstructed to the east from the point where he was struck and from the edge of the ties close by, he must have been negligent in not hearing or seeing the approaching cars. The burden of proving that the deceased was negligent rests upon the defendant, and it was incumbent upon it to satisfy the jury of this by a preponderance of the evidence. Where the only proof is an inference, other infereUces which may reasonably be drawn from the circumstances are to be considered. The defendants point of view is not the only one that may be taken. 1 Shearman and Redfield, Law of Negligence (5th ed.), sec. 114. It is true it was the -duty of the plaintiff to exercise proper care in crossing the tracks of the railroad. It was also the defendant’s duty to • avoid making “flying switches” across a busy street without giving a " warning commensurate with the dangers it created. No one saw the deceased between the tracks until the four cars were moving off the crossing, and it is probable that, he stepped upon the tracks while his attention was directed to their movements. The evidence shows that he could not see east of the elevator office until he was upon or close to the track, and if the two cars were moving, as one witness states, about ten miles an hour, only a few seconds would bring them from the east side of
It is also argued that deceased was a few feet west of the cross-walk when he was struck. The evidence is not uniform as to the exact place, and the matter was for the jury. The evidence further, shows that for many years the public had been accustomed to use a space of several feet to the west of the cross-walk, as well as the main crosswalk, and the exact westward limit of the street is not shown. It seems evident, also, that the accident occurred within the street limits, as a witness, who was sitting about 175 or 180 feet north on the sidewalk in front of a store on the west side of the street, looked south and saw the accident, though there was a building near the track on that side of the street. Even if, the accident occurred a few feet from the cross-walk, under these circumstances, it would not alter the legal effect of what took place.
Complaint is made of error in the giving and refusal of instructions.' After instructing with reference to the issues made by the pleadings, the jury were told: “The question of the negligence of the defendant, and that such negligence was the cause of the injury to Jacob Nilson. which resulted in his death and that it was without negligence on his part are the decisive questions in this case for you to pass on.” They were then instructed that the burden was upon the plaintiff to prove that death resulted from the “negligent and careless operation of its railroad in running its cars at the time and place set out in the petition, and, she having established this fact by a preponderance of the evidence, it then rested upon the defendant to establish by a fair preponderance of the evidence that the negligence of the deceased, Jacob Nilson, contributed directly to the injury which caused his death.” The jury were next instructed that there is no presumption of negligence on the párt of either party until the contrary is shown by evidence; and,'after stating *i number of matters which are competent for. the jury to consider with reference to the negligence of the defendant,
We are unable to see wherein these instructions do not state the law correctly, both upon the question of contributory negligence and measure of damages, the points as to which the defendant complains most seriously. This
At the trial some immaterial evidence was admitted respecting the property of the deceased, but this, if it had any effect at all, would be more apt to redound to defendant’s advantage than otherwise. This was the very thing that the defendant sought to introduce in evidence in the case of Chicago, R. I. & P. R. Co. v. Hambel, 2 Neb. (Unof.) 607, and of the exclusion of which it made complaint. It is not the amount of the estate which a person owns in his lifetime or which he leaves after his decease which determines the amount- of damages which his widow and children may suffer by reason of his death. Chicago, R. I. & P. R. Co. v. Holmes, 68 Neb. 826.
It is shown that Nilson owned 160 acres of land near Sutton and a home in that city; that he had moved to town-to educate his younger children; that he worked in his own garden, worked around town and for some of the neighboring farmers in haying and harvest time. His arrangements with his son Albert evidently gave him control over the management of the farm, because the son did what his father told him to do. The parent worked part
The judgment of the district court is
Affirmed.