73 Neb. 820 | Neb. | 1905
The facts in this case are set forth in the opinion by Mr. Commissioner Ames in Mathiesen v. Omaha Street Railway Co., 3 Neb. (Unof.) 743. At that time the judgment of the district court at a former trial was affirmed. Upon a rehearing (3 Neb. (Unof.) 747) the judgment was reversed and a new trial ordered. At the new trial a verdict and judgment were rendered against the defendant, from which it prosecutes error.
At the former hearing before this court its attention was directed to the question whether or not the evidence on the part of the plaintiff was sufficient to warrant the court in giving a peremptory instruction for the defendant at the close of the plaintiff’s case, and it was held error to so direct. At the last trial evidence was introduced by the defendant as to the speed of the car, which was not produced at the former trial, and it is now contended that, taking all the evidence together, it is not shown that the defendant was guilty of actionable negligence. There is a conflict in the evidence with reference to the rate of speed at which the car was running. It was held upon the rehearing that there was sufficient evidence given by the plaintiff himself at the former trial to render it necessary to submit the question as to whether or not the defendant was operating .its car at a negligent rate of speed to the jury, and the fact that the defendant has produced addi
The principal ground upon which the defendant now seeks to reverse the judgment of the district court is that the evidence shows that the plaintiff was guilty of contributory negligence. It appears that Leavenworth street from 21st street to 20th street has a down grade of three per cent. It seems that it is 17 feet from the south curb of Leavenworth street at 20th street to the south rail of the street railway track; that the plaintiff was driving north upon 20th street at a rate of between three and four miles an hour. He testifies that he looked east and saw no car, then looked west and saw the headlight of a car opposite where he knew certain flats to be, a distance of about 200 feet; that he immediately whipped up his horses in order to get across the track, but that the car struck the wheel of his wagon before he cleared the track. The question, then, is presented whether or not he was guilty of contributory negligence in attempting to drive across the tracks at a time when his horses’ feet were at the track, and when he saw a street car at a distance apparently of from 150 to 200 feet. He testifies that his Avagon and horses Avere 18 feet 4 inches long, consequently, in order to clear the track, he would have been compelled to move forward more than that distance. The ordinances of the city of Omaha prohibit the street .car company from operating its cars at a speed greater than 15 miles an hour, and the testimony on the part of the defendant is that the usual running speed is from 8 to 10 miles an hour, and that this was the speed of this car. If the street car had been distant 150 feet at the time Mathiesen first saw the car and his horses reached the railway track, his team, traveling at the rate of 3 miles an hour, would have moved forward 45 feet Avhile the street car Avas traversing the 150 feet at the rate of 10 miles an hour; Avhile, if the car was moving at the rate of 8 miles an hour, he Avould
This court has refused to adopt the rule that persons traveling upon a public highway along or across a street railway are held to the exercise of the same degree of care as when traveling across an ordinary steam railroad. The streets of a city are made for public travel, as well that portion of the public which travels with ordinary vehicles as for that portion which travels in the cars of a street railway company. The driver of an ordinary vehicle has the same right to use the street as the street railway company, but he cannot shut his eyes to the dangers incident to the ordinary and reasonable operation of the cars of such company. If the driver of a vehicle who arrives at a street intersection and who sees an approaching car is justified in believing that there will be sufficient time for him to cross the track before the car, if run at its usual and ordinary rate of speed, will reach the point of crossing, he cannot be said as a matter of law to be guilty of negligence in attempting to cross, and the question is a question of fact for the jury, to be determined from all the evidence before it. What an ordinarily prudent and cautious person would do under like circumstances is peculiarly a question for the jury. Metropolitan Street R. Co. v. Slayman, 64 Kan. 722, 68 Pac. 628.
Plaintiff in error further complains of the exclusion of certain evidence offered for the purpose of showing that the plaintiff could have seen an approaching car before he reached Leavenworth street from the south, and that a certain church building which stood on the south side of the street did not interfere with his view to such an extent as to prevent him from seeing the car at a greater distance than that at which he swears he saw it. Ordinarily, where it is a material question whether certain objects can be seen from certain points under certain conditions, it is entirely proper and competent to prove by witnesses who have gone to the spot for the purpose of making ob
Complaint is made of the instructions given and refused, but they seem to be as favorable to the defendant as it was entitled to, and the issues were fairly submitted to the jury thereby.
It is further urged that the damages are excessive, but from an examination of the evidence we think this assignment is not well taken.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.