103 Neb. 339 | Neb. | 1919
Lead Opinion
Forrest Spieler, a boy about five years old, was injured by one of the defendant’s street cars so that he
As to the allegation that the car was moving at a negligent rate of speed under the circumstances, it is said and assumed in the briefs of both parties that the ear was moving at a speed of four miles an hour; and the plaintiff in his brief says: “This point about the speed is not worthy of lengthy consideration by the court, since there is ample evidence on other matters to sustain the jury’s finding of negligence.”
The question of negligence on the part of the motormau in failing to warn the boy of his danger is somewhat discussed. There were two persons, a man and
Whether the evidence shows that the motorman knew, or ought to have known, that the boy was about to step on the track is considerably discussed in the briefs. The evidence shows that the boy when he was at some considerable distance from the car track, left the sidewalk and picked up some article of interest to him in Twelfth street. He then went immediately toward the car track. Jeffers, one of plaintiff’s witnesses, testified as follows: “Q. Did you see the little boy when he — just before he got run over by the street car? A. Yes, sir. Q. And where was he at the time the car struck him? A. You mean when the car struck him? Q. Yes, sir. Where was he at the time- the car struck him? A. You mean when the street car struck him? Q. Yes, sir. Where was he in the street? A. Well, he was kind of running on a little bit of a walk, and' the car hit him on the southeast corner, or he struck the car. Q. Where was he with reference to the — was he on the crossing going across the street where there is a crossing where people cross the street there? A. Well, just about the east end of the crossing, and maybe a little this side of it. 'Q. It goes across N street
Evidence to the same effect was given by several other witnesses, both for plaintiff and defendant, and is not disputed by any. The motorman testified that he saw the boy as he left the walk, and saw him approach the track; that he walked toward the man and woman who were waiting to take passage on the car, and that he supposed that the boy was in the care of this wtíman and was about to take the car with her. It appears that the boy, instead of stopping with these intending passengers who were standing very close to the track, attempted to cross the track in front of the car. The evidence is conflicting, or perhaps uncertain, as to just how far he had proceeded when he struck the car, or the car struck him. He did not fall between the
We do not find any evidence in the record justifying the application of the doctrine of the last clear cilanco, which requires that, when one by his own act cau'ses his injury, the evidence that the conditions were such that the defendant knew1, or ought to have known, of the probability of danger to the injured party shall he clear and definite. The evidence in this case will not justify the finding that’the motorman knew, or ous’ht to have known, of this hoy’s intention, or that ho failed to use all reasonable efforts to stop the car and prevent the injury. Evidence that the motorman, without leaning forward and “just as he stands,” would probably see the track within two feet of the car, under such circumstances, is not applicable. If the motorman was the guardian of this boy and bad no other duties to perform, be might, and probably would, have prevented the injury. There is no doubt that the motorman saw the hoy coming toward the t/ack as other passengers did who expected to take the car, but there is no evidence that, after the hoy had reached the place where other passengers were standing, the motorman saw, or should have seen, any action of the hoy indicating that he intended to cross in front of the car, The city ordinance, which is in evi
Another claim of negligence on the part of the defendant is that tlm motorman made no attempt to stop the car after he realized, or should have realized, that the boy was in a dangerous position. We have already indicated that we cannot find that there is evidence in this case sufficient to justify a reasonable conclusion that the motorman knew, or should have known, that this little boy was without protection and was not accompanying these passengers that were expecting to enter this car; and it appears that the evidence shows that the supposition that this child was being cared for by its parents, and that they were intending tp take hint, with them upon the car, was not an unreasonable supposition; and there is no evidence from which it could reasonably be found that the motorman should have anticipated that this boy would attempt to run in’ front of the car when the ear was about to stop; and he was so near the car that it is doubtful whether he was struck by the car or himself run against the side
This car was equipped with a hand brake, and it is contended that it was negligence per se to operate a car with that style of brake. The evidence shows that some ten years before this aceident happened the street car company had purchased a number of cars equipped with hand brakes, and that later, and shortly before this- accident, some much larger cars with air brakes had been purchased and were being operated. These larger cars make the longer runs, and the ordinary smaller cars are in a large majority of the ears used by the company. They are known as single-track cars, and the larger cars are known as double-truck cars. The evidence will not support the conclusion that the air brakes are in any general use anywhere on the smaller single-truck cars, or indeed that they are practicable for use upon such cars. It seems to follow that the evidence fails entirely to show negligence on the part of the defendant in failing to equip this car with air brakes.
There is an ordinance of this city that “It shall be unlawful for any person, firm or corporation to operate any electric street car in or upon any street railway within the corporate limits of the city of Lincoln, unless such car, or in case of trains, the first car, be provided with a fender of the type known as the ‘Saginaw fender,’ or one equally as efficient.”' And it is contended that the .fender on this car was not a Saginaw fender or one equally as efficient, and that this was the proximate cause of the injury. The evidence shows that the fender was in fact a Saginaw fender, but it is contended that it is not sufficient to show that the fender is of that character, but it “must be in
The evidence is conflicting as to how soon the car could be stopped if the brake was in good condition. Some
Can a motorman, under the doctrine of the last clear chance, be charged with negligence in not stopping his car sooner, if being surprised with a sudden shout of danger, he succeeds in realizing the danger and stopping the car before it moves more than from 10 to 14 feet?
In stating the case to the jury, the court gave a comprehensive instruction reciting many, if not all, of the allegations of the petition in regard to the different alleged grounds of negligence, which would, of course, be erroneous if any of the allegations of negligence were unsupported by the evidence, and following this the court gave instructions on each of the different allegations, submitting them all to the jury. It seems clear that the court also erred in submitting evidence that on some cars at different times the motorman had either maliciously or ignorantly manipulated the fender so that it would not work properly. There
It is not necessary to discuss the amount of the verdict, although it is complained of as excessive, as it is not presumed that .another jury will consider, or even know, the amount of this verdict.
For the various reasons stated, the judgment of the district court is reversed and the cause remanded.
Bevebsed.
Dissenting Opinion
dissenting separately.
It seems that, even though the evidence does conflict, there is sufficient under the rule to sustain the verdict. A few points wifi be noted.
Motorman Craig who'drove the car .testified on the part of defendant: “I set the brakes and the car stopped almost immediately. * * * I consider I had my car under perfect control, and had the slack up out of my chain because I was expecting to make a stop, and the car was. drifting slowly out so-that I made an easy stop.” He said he thought the boy “belonged to the lady.” He also said: “If I was looking out of the south window of my vestibule from where I stand in the vestibule I would never see a child as small as that, so that if he was within three feet of the corner of the car I could not see him until I knew he was there and looking extraordinary for him. * * * In order to stop a car like that moving, say at four miles an hour, I think a man would make a good stop if he made it between eight or twelve feet.” Craig’s testimony was discredited by three, or four witnesses.
William Schafer testified on the part of plaintiff. He said the lady was at no time between the boy and the approaching car. “Q. Did the boy get on the track? * * * A. Yes, sir. Q. And was he on the track when he was struck? A. Yes, sir; on the first rail; that is the south rail.” He .said the boy was struck by “the curve of this flange” on the front of the car at a point over the south rail. I made an attempt
R. Gr. Jeffers, called by plaintiff, testified: “Q. Well, where was he (plaintiff) with reference to the south rail? A. Well, he was just by the corner when the car got him. * * * Q. Well, how far did the car go after it struck him? A. About ten feet.” He told about the car wheel pushing the boy’s foot along the rail. “Q. Do you know when somebody hollered whether the motorman knew what had happened or not? A. Well, I think, yes, sir; he must have, because he went after that brake wheel pretty hard. * * * I seen him go through the motions of turning that wheel. * * * Q. Well, did you see him go around more than once? A. Yes, sir, he went around more than once I think.” This evidence of Craig’s unusual exertion at the wheel at a place where a slight turn, perhaps a quarter turn or less, would have stopped the car if he had it under control doubtless' convinced the jury that he was grossly negligent.
It is obvious that Jeffers’ testimony discredits Craig’s version of “perfect control” of the car and of
R. C. Liston was called by plaintiff, and testified that he was about fifty feet away, and saw the hoy struck by the front of the car “probably" about two or three inches to the right of the track,” and that the part of the car that struck him was about on a level with the hoy’s shoulders. Prom the marks on the rail he believed the boy’s foot was dragged about a foot and a half.
Two former motormen testified in substance that without leaning forward an object on the ground can he seen by a motorman within two feet of the front of the car from the place where he stands in the vestibule. They also testified that the car in question when running four or five miles an hour could be stopped within four or five feet if, as Craig testified, the slack was taken up. Defendant’s superintendent of transportation made a test of the car in question when it was running “as close as possible to four miles per hour.” He testified: “I had the slack taken up in my chain. # # * I made four tests with car No, 243,
Nearly all of the testimony quoted in the majority opinion is that of Mr. Jeffers. Though called by plaintiff his testimony plainly shows that he was a hostile witness. His cross-examination by defendant as reproduced in the majority opinion appears in a series of leading questions and willing answers. This is mentioned merely because the case seems to be reversed on the ground that the testimony conflicts and that there is not sufficient evidence to support the verdict.
The court instructed the jury on the question of comparative negligence, thus invoking a rule in defendant’s interest that is not applicable in a case involving a child under six years of age. 29 Cyc. 560. The jury being "so instructed; it will he assumed that, if it found that plaintiff by any negligence of his own contributed to the happening of the accident, the rule was applied by the jury to the facts. Rev. St. 1913, sec. 7892.
Craig says that he saw the hoy before the car struck him. The boy was struck by the car platform at a. point almost immediately over the south rail. Prom that part of the platform to the center of the front wheel is a little more than ten feet. In view of the testimony of the former motormen that the car, under the circumstances attendant on this case, could have been stopped in from four to six feet, it seems difficult to escape the conclusion that, if the motorman had used reasonable diligence and care, he could have stopped the car before the wheel reached plaintiff. It would seem that there is sufficient evidence to support the verdict.