108 Neb. 26 | Neb. | 1922
Appellant, as executrix of the estate of Halsey W.
The charge of negligence made by the plaintiff in her petition against the defendant, is excessive speed of the street car, failure to sound the gong, and failure of the motorman to keep a vigilant lookout at a street intersection. The answer of the defendant specifically and generally denies the allegations of negligence, and charges the deceased, Halsey W. Reynolds, with contributory negligence in stepping upon the street car tracks before a moving car without looking, and heedless of the danger signals.
At the time in question the appellee owned and operated a double-track electric street railway on Thirtieth street, running north and south, the west track being the south-bound and the east track being the north-bound track. Mary street intersects Thirtieth street from the east, the west end thereof terminating at the west curb line of Thirtieth street. On the west side of Thirtieth street and the west terminal of Mary street, and about opposite the south curb line of Mary street,' is a grocery store and to the north thereof is a drug store. At this point Thirtieth street is 4-0 feet and Mary street 22 feet wide from curb to curb, and 13 feet from the east or west curb line of Thirtieth street to the car tracks, each track being 4 feet 8% inches wide, and the distance between the north and south-bound tracks being 4 feet dy2 inches.
At the time of the accident, deceased, a deaf man, about 66 years of age, a carpenter and contractor by trade, and a resident of Omaha for more than ten years,
As to the rate of speed and the sounding of the ■gong, there is a sharp conflict in the evidence. Appellant’s witnesses fixed the rate of speed of the car at from 10 to 35 miles an hour, and they heard no warning, and one or two witnesses claimed the motorman was looking down at his feet and did not keep a lookout..
C. V. Hertel, the motorman, testified, in substance: =Q. Now, when he (Reynolds) stepped from between those
Deceased, when struck by the car, was thrown through the air nine or ten feet, and from where he landed on the pavement he slid a distance of about eight or ten feet north and west, lo a point between the south-bound tracks, and opposite the north property fine of Mary street. The car, when brought to a stop, stood Avith its rear end opposite the body. Deceased died from the injuries received in a feAV hours. Thirtieth street is paved, practically level for several blocks, with ah elevation to the north of 6/10 of 1 per cent.
Tests were made with the car driven on that occasion, to demonstrate that the same could not attain on Thirtieth street a speed in excess of 18 miles an hour. At the time of the accident the day was bright and clear, and-there was nothing in the street or the intersection of Mary street to impair the vieAV of deceased.
The testimony is convincing that deceased Avalked into danger without looking. And the record discloses no excuse or reason for his failure to use his vision, Avhen,
The appellant complains of instruction No. 9, given by the court on its" own motion, which instruction is as follows:
“You are instructed that a street railway company and an ordinary pedestrian have equal and reciprocal rights of travel at the intersection of streets in the city, but each must observe due care to avoid accidents, taking into account the fact that the street car is confined to the track, while the pedestrian has freedom of movement. The pedestrian should look before he attempts to cross a street railway track in order to see and avoid danger. The fact that the decedent was deaf made it incumbent upon him to be more alert in the use of his sight to protect himself from harm. In respect to these reciprocal rights and duties of the parties you are instructed that it was equally the duty of Halsey AY. Reynolds to look for an approaching car and of the motorman to keep a lookout ahead of the car for a pedestrian who might be crossing the intersection.”
Considering this instruction together with the other instructions given, we do not deem it reversible error.
“A street car has the right of way in case of meeting a person or vehicle, but each party, in order to avoid accident, must exercise ordinary care, and such reasonable prudence as the surrounding circumstances may require.” Hall v. Ogden City R. Co., 13 Utah, 243, 57 Am. St. Rep. 726.
According to the rule prevailing in this state, whether under the circumstances it is the duty of a person to look and listen for an approaching car is a question of fact and not of law, and a pedestrian’s failure to look and listen before crossing a street railway track is not ordinarily negligence per se. If, however, the failure to look or listen in a particular case is such palpable negligence as to leave no room for a reasonable difference
The appellant contends that the trial court erred in not giving instructions requested by appellant on the doctrine of the last clear chance. We do not think that doctrine applicable to this case. In the case at bar the facts are not sufficient to invoke that doctrine. There was no time that deceased in crossing the street could not have avoided the injury to himself by merely looking for an approaching car, and we think that it cannot be said that deceased was discovered by the motorman to be in a state of peril at any point of time before the motorman used his utmost endeavor to stop the car. Hooker v. Wabash R. Co., 99 Neb. 13; Deane v. St. Louis Transit Co., 192 Mo. 575. There is no evidence whatever of any recklessness or wantonness on the part of the operators of the street car.
We are satisfied that the judgment of the lower court is right, and it is
Affirmed.