97 Neb. 328 | Neb. | 1914
From a verdict and judgment of the district court for Otoe county, awarding plaintiff $261.50 damages for the negligent and careless operation of automobiles owned by defendants, defendants severally appeal.
The petition alleges, in substance, that on August 18, 1911, plaintiff was traveling along a public highway driving a team of horses attached to a wagon; that while so traveling, and at a narrow place in the road, the defendants approached him from the rear, each driving an automobile; that as they approached they carelessly and negligently sounded horns and made unusual and unnecessary noises with their automobiles and other instruments; that they were each traveling at an excessive rate of speed, to wit, 15 miles an hour; that as they approached from the rear, making the noises and confusion noted, and at the rate of speed stated, plaintiff’s team became frightened, and he requested defendants to cease said noise and reduce their speed until he could get his horses under control and reach a point of safety; that defendants each disregarded his request and ran their automobiles by his team in a careless and negligent manner, at a place where the same was approaching a bridge and where the road was too narrow to allow plaintiff to turn out; that each of defendants in passing turned into the road immediately in front of plaintiff’s team and less than 30 feet therefrom; that, by reason of the careless and negligent acts of defendants, plaintiff’s team became frightened and unmanageable and ran away, throwing plaintiff out and permanently disabling his right arm; that in all of such acts defendants were acting in concert and their automobiles formed a part of one procession. Defendants answered separately, by general denial.
The grounds upon which defendants assail the judgment are: (1) That the evidence shows there was no concert
The evidence shows that on the day in question the defendants, with a number of. other persons, in 16 automobiles, formed a procession at the town of Talmage, and proceeded from there, in procession, to several adjoining towns. The purpose of this tour was to advertise the town .of Talmage, and especially a picnic which was to be held at that place within a few days thereafter. The trip was prearranged, the details thereof provided for, and defendants, with the other persons who accompanied them, participated in all the matter's in relation thereto. They formed a procession and proceeded as such during the entire trip after leaving Talmage until after the occurrence upon which this action is based. The several cars Avhich comprised the procession moved in the same direction, at the same time, at substantially the same rate of speed, for the same purpose, and Avith the same end in view. The car of defendant Uhl headed the procession. Second came the car of Henry Bischof, Avho was made a defendant in the action, but in whose favor a verdict Avas di
Herman O. Gruenther, a young man 20 years of age, was called as a witness. His testimony sIioavs that he was traveling along this road with a motorcycle; that he had some trouble with this motorcycle, and had stopped for the purpose of putting it in order; that while he was there plaintiff passed, driAdng his team; that within five minutes thereafter “the Talmage boosters” came along; that Avhen they passed him they were making a noise with rattles, horns and whistles; “they made all kinds of noise;” that they were blowing horns with their mouths, in addition to bloAving their automobile horns; that their mufflers were off, and they were making so much noise as they passed
It is needless to quote any more of the testimony. It is very clear that the defendants, not only carelessly, but recklessly, passed the plaintiff when he was in a place of danger, at a high and reckless rate of speed. According to the plaintiff, instead of stopping the noise, -they made more as they drove by. The evidence shows that plaintiff’s horses were not easily frightened. It is clear that, even with the noise the cars were making, no one of them, passing as they did, would have caused the runaway; but, rushing by as they did, one after another, in rapid succession, proved to be too great a strain for even this reliable team. The horses “looked up and got kind of scared” as the first car whizzed by. They became more and more frightened as each succeeding car passed, until the strain became more than they could bear, and when the seventh car attempted to pass their fright reached a point where plaintiff was unable to longer control them. This result was, therefore, not caused by the single act of any one of the defendants, but by the combined acts of all. Their actions show a disregard for the rights, and even the life, of the plaintiff, for which the jury held they should answer, and they should consider themselves very fortunate that the jury dealt with them as leniently as the verdict shows.
The contention that no concurrent negligence on the part of the defendant is shown is without merit. If the cars were running at the rate of speed testified to by plaintiff and the witness Gruenther, and they were traveling about 25 yards apart, as shown by the evidence, less than half a minute’s time would elapse between the passing of
At the time of the trial the defendants severally moved the court to reserve “questions of law involved in this case for decision as affecting the judgment, proper to be entered.” The court did as requested, and answered the questions adversely to defendants. In this the court was fully sustained by the evidence and the law applicable thereto.
. Affirmed. -