49 Neb. 17 | Neb. | 1896
This was an action by Rosa Levinston, as administratrix of her husband, Karl Levinston, deceased, to recover for injuries causing the death of the decedent. The plaintiff in error operates a line of street railway between and through the cities of Omaha, Nebraska, and Council Bluffs, Iowa. It is conceded that Karl Levinston was on the night of May 1, 1890, a passenger on one of the trains of the railway company, boarding the train in Council Bluffs and being transported to Omaha. The train consisted of a closed motor car and an open trailer. After the train crossed Tenth street, in Omaha, Levinston fell therefrom and was run over by the trailer. Injuries were inflicted from which he died some days later. The
Witnesses on behalf of the plaintiff testified to the effect that when the train reached Tenth street it stopped in such a position that the trailer was at or near the west line of Tenth street; that several passengers alighted and that Levinston, who had been seated in the front car, had reached the steps of the rear platform of the front car and was about to alight, when the conductor, who stood on the front platform of the trailer, gave to the motorman the signal to start, which was obeyed, and the train started when Levinston was in the act of stepping to the street; that he was thereby thrown under the wheels of the trailer. Witnesses on behalf of the defendant testify that Levinston made no movement to alight while the train was stopped at Tenth street, but after it had started, and while it was proceeding westward from Tenth street, he arose from his seat and leaped from the train while in motion. Whether the act of a passenger in endeavoring to alight from a street car while in motion, under the circumstances narrated by defendant’s witnesses, would constitute so clear a case as to justify a peremptory instruction to find for the defendant we need not inquire, because as we view the evidence we think there was a conflict upon this point, and we shall review the case on the theory of the defendant, that if the facts were established
The instruction complained of is as follows: “It is conceded that the deceased, Levinston, was on the passenger train of the defendant company, a passenger to be carried from Council Bluffs to the city of Omaha. It was the duty of the employes of the defendant company, when it stopped at Tenth street for the purpose of allowing passengers to alight, to wait as long as it was necessary for all the passengers to alight, and to see to it that those who desired to alight at that point had an opportunity to do so; and if the conductor of the train failed to look at the front car, to see about the alighting of passengers and to know that all those- who desired to alight had alighted; that the deceased, Levinston, was one of those who desired to alight and was in the act of alighting, and the conductor gave the signal to start forward before Mr. Levinston alighted, whether he saw him or not, and that by reason of the car starting forward before he had alighted, and by reason of the car starting forward the deceased, Levinston, fell and was injured, then your verdict should be in favor of the plaintiff for such damages as, under the instructions of the court elsewhere given, you find her entitled to.” The portion of this instruction particularly complained of is that part which states it to be the duty of the defendant to see to it that those who desired to alight had an opportunity to do
Judgment affirmed.