57 Neb. 240 | Neb. | 1898
In this case there was a verdict and judgment in the district court of Douglas county in favor of the defendant in error. In the petition in the district court it was alleged that the defendant, a corporation, was, on April 8, 1895, operating a line of street railway on Sherman avenue in the city of Omaha"; that plaintiff on said day took passage on one of the cars of the defendant running southward on said avenue, and before reaching Burdette street signaled the conductor in charge of said car that she desired to alight at the intersection- of Sherman avenue’Vith Burdette-street; that the conductor negligently permitted the train of which said car was a part to run beyond Burdette street a distance of about fifty feet before stopping; that the place where said train halted was not a place at which defendant ivas accustomed to stop; that within three feet of the rail of the track of defendant farthest west there was, parallel to it, a ditch about two feet wide and eight feet deep from which the dirt excavated had been thrown to the westward; that across this ditch there were crossings at intervals to the sidewalk along the west side of Sherman
On the trial there Avas an irreconcilable conflict in the evidence Avith respect to three propositions. Of these the first -Avas as to the place where ^plaintiff was compelled to alight from the car; the' second was as to whether or not she had in fact .alighted :when the car started forward; and the third was whe * ■" or not, after safely alighting on the crossing, she neg ~ently placed herself in such a position that of? necessity fc. '■ Avas struck by the train when it started forward. XYon all these propositions the evidence was so conflicting that different minds might reasonably reach different conclusions,
It is complained by plaintiff in error that it was improper to. permit evidence to be given as to the distance the street car ran before halting to permit assistance to be rendered defendant in error after she had been injured. There Avas presented by the plaintiff the theory that the train was started so suddenly that she was thereby throAvn to the earth. The evidence as to the distance attained by the train before it stopped was admitted on the assumption that this fact might throw light upon the question of the speed avíüi Avhich the train resumed its course. In this Ave cannot say there was error. Incidentally this evidence might develop the fact that the conductor eAdnced but little of the interest which should influence a person of humane instincts, but this, if it existed, Avas something which ought not to exclude evidence to Avhich the defendant in error was entitled.
In respect to the complaint that the mother of the defendant in error testified that said defendant In error complained of severe pains in her sides, head, and back, and of sleeplessness and want of appetite, it is only necessary to refer-to Hewitt v. Eisenbart, 36 Neb. 794; for the testimony " expert witnesses was to the effect that such results, ,vas inferable, would follow the shock .sustained b ,he defendant in error. Under these conditions it avíiu moreoATer proper -that the defendant in error should .testify, as she did, to the pains, sleeplessness, and want of apoetite/of which she had complained to her mother.
It is urged that the defendant in error made no proof that she was liable for, or that she had paid, the bill of the surgeons who had rendered services in her behalf. This liability is to be presumed from the facts that she had attained her majority before the services were rendered and that they were necessary, and the case therefore falls within the principle stated in City of Friend v. Ingersoll, 39 Neb. 717, and Minneapolis Threshing Machine Co. v. Regier, 51 Neb. 402.
It is complained that at the request of defendant in error an instruction was given by the terms of which, to entitle her to recover, she was required to have exercised ordinary care and diligence, and such care and diligence were not defined. We do not think the omission of this definition could have left the jury in doubt on this point, in view of the sixth instruction given by the court on its own motion, which was as follows: “You are instructed that it is the duty of plaintiff, in alighting from the car after it had stopped, to use only such care as a reasonable and prudent person would exercise under the same circumstances.”
It is insisted there was error in giving the jury an instruction in effect that if the finding was for the plaintiff as to the right to recover, the measure of recovery should be of such damages as the evidence showed she
It is urged that there was error in an instruction that there might be a recovery for physical pain and mental suffering if the proofs showed that the street railway company was liable for damages. This is settled adversely to the contention of plaintiff in error in American, Water-Works Co. v. Dougherty, supra, and in Harshman v. Rose, 50 Neb. 113.
In support of a motion for a new trial there were submitted various affidavits as to what could be shown On a future trial, if one should be allowed. Some of these were of evidence merely cumulative; others were to the effect that defendant in error, a short time before the trial, was present at a ball and danced; but it was shown that the dancing was of a sort that did not require that a participant should not be a cripple, and even this dancing caused defendant in error such pain that she very soon desisted. There was therefore no abuse of discretion in overruling this motion. {Davis v. State, 51 Neb. 307.) -
Upon a very full consideration of all the evidence as to
Judgment accordingly.