131 Neb. 676 | Neb. | 1936
This is an action to recover damages for personal injuries, alleged to have been caused by the joint negligence of Billie Young, the owner and driver of an automobile, and the defendant street railway company and William R. Reddick, one of its motormen.
It appears that after this action was. commenced. Young died, and the action was revived in the name of the administrator of .his estate. No1 pleadings were filed by the administrator, and default was taken as against him. The trial in the district court, from which this appeal is taken, proceeded against the street railway company and its motorman, and resulted in a verdict for plaintiff, and such defendants have appealed.
The accident, resulting in the injuries of which plaintiff complains, occurred about 5 o’clock in the afternoon of December 20, 1933, on Sixteenth street immediately north'of Farnam street, in the city of Omaha. Farnam street extends east and west and is intersected' by Sixteenth street,' extending' north and south. The point is one of the busy business sections of the city of Omaha. The defendant street railway company operates' a double track street railway on Sixteenth street. The east or' northbound track is somewhat east of, and the west or southboúnd track is somewhat west of, the center of Sixteenth street. •Young was driving his automobile west on Farnam street,''had crossed Sixteenth street, and -a short distance west of Sixteenth street his car stopped or stalled. • He got out and cranked his car, and it appears that it was in reverse gear, as the car immediately started to run backwards. Instead of backing straight east, it rán in a curved direction and crossed the pedestrian lane of traffic on the north side of Farnam street, ran northeast, curved back to the northwest, and collided with one of the street cars on the southbound or west track at a point about 50 or 55 feet north of the north line of Farnam street. ' ■' . • ' ■ •
Plaintiff was traveling west along the north line of Farnam street in the lane for pedestrians and was struck by this moving automobile, and was carried or dragged' over the left end of the rear bumper of the automobile. The automobile was a Ford with a rumble seat, 'but the lid or door to the rumble seat was closed, so that the rear of the automobile presented a turtleback appearance. Plaintiff was lying over this turtleback on the'rear license bracket and the rear bumper, and she was carried or dragged in this fashion until the automobile approached within eight or ten feet of the'street car. Plaintiff testifies that at this point she was thrown from or 'rolled off the 'automobile onto the pavement. She claims that the street car ran forward and struck her head and ran over and cut off the fingers of her
One witness, who gave a very clear description of the accident, testified that the automobile moved in a curve or arc of a circle. Plaintiff in her petition alleges that the automobile ran backwards and onto the east side of Sixteenth street. In that event, it was entirely past the southbound street car track. It must be borne in mind that the motorman, when he saw this automobile running backward, did not know that it was driverless; did not see or know that plaintiff was on and being dragged by the automobile; he had no reason to anticipate or expect that any one would be riding or was being carried on the rear bumper of the automobile, and he testified that, in fact, he never saw her on the automobile at all. In any event, when he saw this automobile pass eastward and east of the track on which his street car was moving, he would have no reason to anticipate that it would curve back and come into collision with the street car, until, at least, it had curved and turned back towards the northwest. At the speed with which the automobile was moving, it would take less than three seconds from the time it came into the motorman’s view until the collision occurred, and, from the time it would be apparent to him that it was curving back to the northwest and might come in collision with his. street car, little more than one second could have elapsed. Under such circumstances, where the motorman had the duty of keeping a lookout in front and at the right, where vehicular traffic might interfere with the passage of the street car, we doubt if it could be said that the motorman was guilty of actionable negligence in failing to realize that the automobile would come into contact with the street car, even if it was moving as claimed by the plaintiff. The evidence on behalf of the defendants is that plaintiff remained on the automobile until it collided •with the street car and was struck and wedged in between the two vehicles, and that her hand was probably mangled when the bumper of the automobile struck the bumper, of the street car.
The following established rule is applicable to the situation disclosed by the record: “When it is clear that material testimony has been disregarded by the jury, and which if considered and given due weight, would require a different verdict from that returned, a new trial will be granted.” Dunbier v. Day, 12 Neb. 596, 12 N. W. 109; Exchange Bank v. Gifford, 102 Neb. 324, 167 N. W. 69.
It is evident that the jury must have disregarded uncontradicted evidence in the record that was material to the question before them for determination.
Yfe think it is clear that the verdict is so clearly wrong as to induce the. belief that it must, have been found through passion, prejudice, mistake, or some means not apparent in the record. This court has held: “A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new trial awarded.” Garfield v. Hodges & Baldwin, 90 Neb. 122, 132 N. W. 923. To the same effect is Hoffman v. McKeen Motor Car Co., 95 Neb. 238, 145 N. W. 257.
It. follows necessarily that the judgment .should be and is
Reversed.