92 Neb. 221 | Neb. | 1912
Lead Opinion
This is an appeal by the defendant from the judgment of the district court for Lancaster county. Tbe plaintiff brought an action to recover damages for persona] injuries alleged to have been caused by the careless, negligent and unlawful manner in which the appellant, on the 1.9th day of July, 1908, ran, handled, and managed an automobile, so that, as alleged in the petition, it struck and overturned the carriage in which the plaintiff was then riding with her husband, son and daughter, and threw the plaintiff, with violence, out of said carriage
The horse and carriage were going east on L street at the time the automobile was going south on Eleventh street. The son of the appellant, who had gone to the depot for his mother, and who was driving the family horse and carriage, puts the horse and carriage, by his testimony, half way across Eleventh street at the time lie first saw the automobile coming along Eleventh street from the north, and then distant from the carriage he was driving about 400 feet. He was driving on a trot. As Eleventh street is 70 feet between curbs, he had only 35 feet to drive, if he went on straight ahead towards the east, before he would be across Eleventh street and out of the way of the automobile going south. According to his statement, the automobile had more than ten times as far to go as the horse and buggy before it would collide with them if they went straight east across Eleventh street. The husband of the appellee corroborates the son as to the whipping of the horse by the son, and he, by his evidence, puts the horse and carriage about two-thirds of the way across Eleventh street when he first saw the automobile coming, and it was then distant from him about 250 feet, according to his opinion. The daughter of the appellee was riding in the carriage, at the time of the collision, with her brother, at the left of him and on • the front seat, and the father and mother were in the back seat of the carriage. The daughter, by her testimony, puts the carriage two-thirds of the way across Eleventh street when she first saw the automobile, which was then in front of the grocery store referred to by the father in his testimony, and about 250 feet north.
' Mrs. Roy Young lived at 310 South Eleventh street, over Pfeiff’s grocery store, north of the point of collision,
Lottridge testified that the hind wheel of the buggy ran over the wheel of the automobile and that the buggy did not tip over until it struck the curbstone, which was about 35 feet from where it ran into the automobile. Leslie Keizer testified that when he first saw the automobile it was at the intersection of Eleventh and L streets, and going slow, and that the horse and buggy at first were going east on L street, and all at once the horse turned south on Eleventh street, and then that he turned around towards the automobile, and was going northeast at the time of the collision. He says that when the carriage struck the car it seemed to sway around to the south, and then hit the curb on the corner, and then the carriage turned over; that the right hind wheel of the carriage broke when it hit the curbing or basin. De Vore testified that the horse and carriage were going east on L street, and then that the horse turned south on Eleventh street, and then reared and turned around northeast towards the automobile as though he was going to run into it; that the appellant stopped the car, and the horse sprang around to the south; that the horse was rearing and plunging, and the carriage turned over, and the horse fell near the corner of Eleventh and L, and that the automobile was standing still when struck by the carriage; that the driver was trying to hold the horse, but did not have control of it, and that the horse was rearing and running. Mrs. Louise Herpolsheimer, the appellant’s daughter, testified that she was in the automobile, and that the horse was going on a swift trot, and that as he reached the southwest corner of Eleventh and L he broke into a run; that the automobile had been slowed down, and that the car was stopped when the horse broke and ran, and that the horse seemed to run straight for the car, and that when the carriage struck the car it was standing still; that the horse then went to the southeast
The horse seems to have been badly frightened, and ran when he was whipped, and reared and plunged, and finally went down, and the carriage upset. The right side of the carriage and the automobile were brought together. That the right hind wheel of the carriage was injured and that there were marks on the right front wheel of the automobile tends to corroborate the testimony of the foregoing witnesses for the defendant as to the manner in which the injuries occurred. There is also testimony which tends to show that the horse was skittish and easily frightened, and it is shown that he had before been frightened by a street car which struck him, and the same buggy was overturned and the same woman was injured.
The weight of the evidence clearly shows that immediately upon the horse entering upon the intersection space of the two streets he started south on Eleventh street, apparently to avoid the automobile, then moving south, but the driver began whipping him, and apparently pulled him around until he faced the automobile, which was then northeast of him, and, as the whip was applied, the horse began to plunge and rear, and finally dashed by the automobile, probably on the west side and close enough to it so that the right wheel of the carriage came in contact with the right-hand front wheel of the automobile, and ran over it; the horse and carriage going around the automobile, probably behind it, and then going south 30 or 35 feet to the southeast corner of the intersection space, where the horse fell and the carriage went down and the
The driver, Edward G. Tyler, testified: “I was going northeasterly, would hit the alley back of the Odd Fellows Hall.” Lottridge testified that the horse got six or eigh't feet into Eleventh street, “and made a little turn, as though he was going south. Well, the man that was driving pulled the horse back. That turned him down this way, * * * down northeast, yes. Yes; that would be northeast. Well, the automobile by that time came along here, and the consequence was the buggy ran into the automobile.” Leslie Keizer testified: “Well, at first the horse, it was going east on L street, and when it got over by the little fountain it looked like it was going straight across, and all of a sudden it turned. Q. Turned which way? A. South; gave a short turn, and then turned around again and swung over. Q. Towards the automobile? A. Towards the automobile. * * * Q. And in which direction was the horse going at the time of the collision? A. It was going northeast.” J. S. De Yore testified: “We were going south on Eleventh street, and Mr. Tyler was on L street, coming into Eleventh, and as the horse came into Eleventh he turned south; he Avas going south, and then he reared up, and swung right around, and came right kind of northeast, I should think right towards the automomible, as though he was going to run right onto it. * * * Q. The carriage struck the front Avheel of-what? A. The automobile. Q. What do you say happened to the carriage? A. That wheeled the carriage to the front. The horse was rearing and plunging,' and fell down, just when they got over about the corner of Ekwenth and L, and then the carriage turned over.” A. J. Spain testified: “Well, I Avas standing on the northeast corner next to the Odd FelloAVS Block, with my little boy, and I saw the xnachine coming up Eleventh
The great weight of the evidence is that the defendant
If equally capable men, carefully considering the evidence, may honestly differ as to the facts of the case, then it is one peculiarly adapted to the jury, and their verdict should stand, even though this court should unanimously conclude that a different verdict ought to have been reached, but is at the same time of the opinion that the verdict is not against the weight of the evidence. It may sometimes seem to be a narrow and uncertain line which determines the reviewing court to follow after the weight of evidence, instead of following that which seems to barely preponderate; but this line should at all times be visible to a discriminating and courageous court, willing to limit itself to its own proper province, and not to invade that field of inquiry which relates only to finding the facts by ascertaining a preponderance of the evidence, and which belongs, and should belong, exclusively to the jury. If a careful examination of the evidence shows that the material contentions of the plaintiff are clearly not sustained, the verdict and judgment cannot be right, and are therefore wrong, and the judgment should be set aside.
This court has recently said, in O’Chander v. Dakota County. 90 Neb. 3: “The rule is well established that
In Garfield v. Hodges & Baldwin, 90 Neb. 122, this court declared in the first paragraph of the syllabus: “A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new trial ordered.” That case originated in a tombstone business, where every man employed by the business seems to have been his own boss. There was a large stone, which was denominated A, and it was nearly evenly balanced upon a supporting stone with a sharp edge, and being steadied against the west side of a large post. Another stone, de
In Christensen v. Tate, 87 Neb. 848, the question was whether the plaintiff should recover damages for personal injuries and for damage done to his horse and buggy because of the negligence of the defendant in driving his automobile along one of the streets of Fremont. In that case the defendant testified that he (the defendant) turned around a bill board while driving his machine, and, as he did so, he noticed the horse “looked up, as though he was going to be frightened,” and that he then turned out into the ditch, and gave the plaintiff the full road, and stopped his machine, but the plaintiff denied that the defendant stopped his car at all. This court said, Judge Sedgwick delivering the opinion: “It was fully shown by many witnesses that at the place of the meeting in question 10 or 32 miles an hour would be a highly dangerous rate of speed. In view of the fact that the defendant was a Avitness in his OAvn behalf and did not testify as to the rate of speed he was driving when he met the plaintiff, we cannot say that the finding of the jury is unsupported by the evidence.” In the syllabus, the sixth paragraph reads: “It is found upon examination of the record that the evidence is sufficient to support the verdict and judgment.” The fair implication is that the reviewing court will look into the evidence, and, if there is simply a conflict of evidence, the verdict and judgment will be allowed to. stand, but not where they are clearly against the weight of the evidence.
The restrictions which the law imposes upon all modes of travel upon the highways are such as tend to secure to the general public the largest enjoyment thereof, and must be observed aaid borne by all alike upon the broad ground that all have an equal right to travel in safety; and, when accidents happen as incidents to reasonable use and reasonable care, the law affords no redress. The fact that a horse becomes frightened by a motor vehicle
In Nason v. West, 65 N. Y. Supp. 651, it is said, among other things: “Horses may take fright at conveyances that have become obsolete, as well as at those which are novel; but this is one of the dangers incident to the driving of horses, and the fact cannot be interposed as a barrier to letrogression or progress in the method of locomotion. Bicycles used to frighten horses, but no right of action accrued. * * * Electric street cars have caused many runaways. Automobiles operated without steam, by storage batteries or by gasoline explosive engines, running at a moderate speed, may cause fright to horses unused to them; yet the horses must get used to them, or the driver take his chances.”
It is contended by the defendant that he was driving in his automobile at the rate of from four to six miles an hour, and that lie slowed up as soon as the horse and carriage entered the intersection space of the two streets, and that he has been guilty of no negligence. A careful reading of all the evidence in the case compels us to find that the verdict is clearly against the weight of evidence. Our supreme court reports contain many hundred cases where the verdict and judgment have been .set aside because of the insufficiency of the evidence. The most recent of these cases are Rockwell v. State, 90 Neb. 744; In re Estate of Paisley, 91 Neb. 139; Bartels v. State, 91 Neb. 575; Carlos v. Bastings Independent Telephone Co., 91 Neb. 538; Fitzgerald v. State, 91 Neb. 481; Gering v. Leyda, 91 Neb. 430.
The seventh instruction given by the court upon its own motion reads: “If you determine from the evidence and. under these instructions that the defendant was
The jury must have been misled by the following sentence contained in the instruction above quoted: “On the other hand, any negligence of plaintiff’s son in the management of the horse would not constitute negligence on the plaintiff’s part, and she would not be responsible therefor.” The foregoing sentence would seem to be clearly wrong and misleading and in a high degree prejudicial to the defendant. The plaintiff’s son, with plaintiff’s consent, was driving the family horse and carriage. All the members of the family were with him. Presumably he was driving as the plaintiff and her husband desired him
If the plaintiff’s son drove into the automobile of defendant, then the defendant is not liable, because he is not responsible for the collision. There is no liability of the defendant, whether the act done is regarded as the act of the plaintiff or the act of her son. She cannot be held
It is urged by appellant that the verdict is the product of bias and prejudice upon the part of the jury, and in support thereof it is stated that it appears from the affidavits of three of the jurors that they, understood from the remarks of the court, urging the jury to agree upon a verdict, if possible, and from the conduct of the attorneys of the respective parties, whom the trial judge called to his desk, and with whom he held a private consultation, that it was the desire, both of the court and the attorneys, that there should be no disagreement, and that a verdict of some kind should be returned, and therefore, solely by reason of that fact, they consented to join in the verdict rendered; that they would not have done so but for the reason that they were influenced by the remarks of the court and what took place between the court and the attorneys. We do not pass upon this question, because compelled to grant a new trial for the reasons above specified.
The judgment of the district court is
Reversed.
I concur in the result reversing the judgment.
Concurrence Opinion
concurring in part.
I concur in so much of the opinion as holds that the evidence does not establish negligence on the part of defendant. This being true, there is no question of contributory negligence in the. case. There cannot be such a thing as contributory negligence by one party where there is no negligence by the other.
Concurrence Opinion
concurring in part.
I concur in the view that the judgment should be reversed as unsupported by the evidence. It is my view, however, that the duties of the driver of a motor vehicle with respect to meeting or passing horse-drawn vehicles are laid down in sections 6235, 6236, Ann. St. 1911 (Comp. St. 1911, ch. 78, secs. 146, 147), and that, unless the accident is caused in some other manner than by a violation of these rules, the court is bound by the police regulations established by the legislature and should adhere to the same. As to other points decided I express no opinion.
Dissenting Opinion
dissenting.
It seems to me there is sufficient evidence of defendant’s negligence to justify the action of the trial court in- submitting that issue to the jury. I do not concur in the reversal for any reason given in the opinion, and therefore dissent.
Dissenting Opinion
dissenting.
The evidence in this case is conflicting, although seemingly preponderating in favor of defendant. It is my view' that the question of the weight of the testimony is for consideration and decision by the trial jury, and not for this court. While, had I been called upon to determine the case upon the preponderance of the evidence, T probably, could not have agreed to the verdict, it is the well-settled law that in such cases the verdict of a trial jury should close the inquiry.