120 Neb. 684 | Neb. | 1931
Mary Simonsen brings this action to recover damages for personal injuries received while riding as a passenger in an automobile driven by her husband which collided with a trolley pole obstructing the street. The trolley pole had been broken and knocked into the street by a delivery truck, owned and used in the grocery business of Theodore M. Thorin and driven by his son Theodore. Hereinafter, for convenience, Mrs. Simonsen will be designated as plaintiff and the Thorins as defendants. The record presents three assignments of error, which will be discussed in the order of presentation.
The first question presented by this case is the duty and liability of one who involuntarily and without negligence obstructs a street. This case was tried upon the
The next question presented in this case is whether the trial court erred in overruling a motion for a new trial on the ground of newly discovered evidence. A certain witness testified in this case relative to things which happened at the scene of the accident. The newly considered evidence consists of testimony by two boys who were also present at the time and contradict certain statements made by this witness at the trial. The statements which are contradicted relate to the activity of said witness between the time the obstruction was placed in the street and the time of the collision of the plaintiff’s car with said obstruction. The evidence is undisputed that, at the time of the collision, this obstruction was in the street and no one was warning approaching travelers of
The last error urged is that the verdict is excessive. Doctor Reed, the attending physician, testified that plaintiff was struck on the posterior part of the head, causing a bump with small cuts upon her face, hands and scalp; that she had pains in her back and developed a nervous condition, with the result that she was sleepless and hysterical. Doctor Dishong, who treats nerve and mental disorders exclusively, testified similarly as to her nervous condition. He found it necessary to hospitalize her for three weeks; that she was still under his care almost a year after the accident and that her chances for a complete recovery are problematical. She was unable to testify at the trial of the case. There is no evidence in the record challenging this evidence of her physical condition. If she is malingering, as delicately insinuated by defendants, it cannot be discerned from the record. She was a well, normal woman before the accident. Members of the family also testified in corroboration of her physical condition. She is unable to attend to her household duties and spends several days a week in bed. Without further delineation of testimony, which would serve no useful purpose, suffice it to say that the evidence sustains the amount of the verdict, $5,000.
Since we find no reversible error in the record, the judgment of the trial court is
Affirmed.