78 Neb. 767 | Neb. | 1907
On or about May 29, 1903, a borse and buggy, belonging to the appellant, was being driven north on Twenty-Fourth street in South Omaha, on the west side of the
Mr. McJntire, the driver, is the only witness throwing any light on this question. In describing the accident, on his direct examination, he said: “Just before I got to H street, the horse became scared, watching the car. I was very careful to have him well in hand. When I saw he was scared, and just as the car got almost opposite, hi.*
The foregoing is all the material evidence relating to the situation just previous to the accident. On this evidence the trial court ruled that there was no showing of negligence on the part of the defendant company, and directed the jury to return a verdict for the defendant. Keeping in mind the rule that, where a verdict is directed for the defendant, the court should consider as established every fact which the evidence tends to prove, we are required to determine whether there was error in the direction of the court. There is no allegation’ in the petition that the motorman did, or by the use of diligence could have, observed that the horse was frightened in time to have brought his car to a stop prior to the collision. The only allegation relating to the negligence of the motorman is to the effect that, “after the car struck the horse and buggy, the motorman, both seeing and knowing the imminent danger in which the plaintiff’s horse and- buggy, as well as the occupant of said buggy, were placed by the negligence of the defendant, and having the power to stop said car, in absolute disregard of defendant’s duty to stop said car, negligently failed even to diminish the speed of said car, but, on the contrary, said motorman continued to run said car at a great rate of speed for about the total distance of one-half block after striking and running into said horse and buggy.” There is no evidence shoAving that the car could be stopped in a less distance than that alleged, or that the damage was occasioned by the failure to stop within a less distance. It is a well-established rule
If it had been alleged and shown that the motorman saw, or by reasonable diligence could have seen, that the horse was greatly frightened, in time to have brought the car to a halt before the accident, and that he failed to do so, that would have established negligence on the part of the company. There is no allegation to that effect in the petition, and the record is entirely barren of any evidence tending to show that the motorman had or could have had knowledge that the horse was unduly frightened until he got opposite, or nearly opposite. That the horse showed signs of nervousness could hardly be observed by the motorman at some distance away, unless -it was of such a character as to attract the attention of those at a distance, and of this there is no evidence. A careful examination of the record-convinces us that there was no case for
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment appealed from is
Affirmed.