278 N.W. 561 | Neb. | 1938
Plaintiff appeals because, after her evidence was submitted to the jury, the court sustained defendants’ motion to discharge the jury, dismissed the action, and entered judgment for defendants for costs. Error is assigned on sustaining the motion and on the holding that there was no evidence to show defendants guilty of negligence.
This case was before the court in 1936 to review a former trial in which there had been a judgment for plaintiff. The judgment was reversed. Peterson v. Omaha &
On the former trial plaintiff’s petition had pleaded that defendant Young negligently and carelessly permitted his automobile to get beyond his control and to descend backward and to proceed in an easterly direction on the north side of Farnam street, and in a northerly direction -on the east side of Sixteenth street. The testimony in the former case showed that the automobile described a large arc, going northward on the east side of Sixteenth street before turning and coming back to the west side of that street, where it struck the front end of the south-bound car on the tracks on the west side of that street. To meet the unanswerable argument of the opinion in the former case to the effect that the motorman was not chargeable with negligence in failing to anticipate that the automobile would get far enough west to strike the front of the street car, plaintiff amended her petition so as to allege that the course of the automobile, after turning from Farnam street, was on the west side of Sixteenth street. This would bring it in the area of vision of the motorman for a somewhat greater distance. The purpose of the amendment was to bring the case within the last cleat chance doctrine, which had in effect been precluded by plaintiff’s allegations in the original petition and the testimony as to the direction of the automobile on Sixteenth street. To carry out the theory, the witnesses for plaintiff so changed their testimony as to make it appear that, instead of describing a large arc or curve to the east side of Sixteenth street, the course of the automobile was north on the west side of that street until it struck the street car.
In the former case, as shown in the opinion, plaintiff
Whereas, on the former trial, plaintiff-testified that she fell off the automobile eight or ten feet south of the street car, on this trial she testified that she fell off about four or five feet south of the street car. She testified that the street car was moving and kept moving, that it ran over her hand and came to a stop after the front wheels had gone over her hand and two feet farther. It is to be noted that the distance from the front of the street car to the back of the front wheels still remains 18 feet. So the street car, by plaintiff’s changed testimony, has moved 20 feet plus the four or five feet she was in front of it when she fell off.-
Esther Ghristensen testified that she was sitting in a restaurant booth in the Paxton block on the east side of Sixteenth street and saw the automobile come from along Farnam street about as it turned into Sixteenth street and proceeded on its way. She testified for plaintiff in all three trials of this-case. On this trial-she testified that, after the automobile and the street car came together, the street car shoved the-automobile back “eighteen or twenty
In Adams v. New York City Ry. Co., 109 N. Y. Supp. 1019, the court said in the syllabus: “Testimony on a vital point in a case, materially changed to obviate objections
This case was tried three times. The last two trials were before the same judge.'- He evidently concluded that there was not other or different case made out than before when we sent the case back for trial. Other than the testimony of the witness whose testimony we have found discredited, there was no evidence which would allow the case to go to the jury. The trial court anticipated what -our action must be in such a situation and reached the same conclusion before we did.
The proximate cause of the injury to plaintiff was the movement of the automobile of defendant Young. Plaintiff has not sustained the burden of proving that the street car company or its motorman concurred in the negligence that produced the injuries.
The judgment of the district court is
Affirmed.