96 Neb. 596 | Neb. | 1914
This case was once before in this court.. On this last trial the plaintiff again recovered a verdict, and the defendant has appealed. There was considerable additional ■evidence taken, some of which will be referred to, but it is not thought necessary to repeat the statement of the un■controverted facts, which may be found in the former ■opinion. 93 Neb. 774.
1. The defendant alleges that there was improper conduct on the part of the jury; some of them.in the.hall of the courthouse during an intermission . conversed with Miss Hamilton, a nurse who took care of the plaintiff after his injury. She was an important witness on the trial, and her evidence appears to be wholly disinterested and reliable. Her affidavit was filed upon the motion for a new trial, in which she testified that one or two of the jurors in the presence of others asked her questions about the testimony she had given. She described a juror who questioned her as a “Jew or Dago,” and shows that he and other jurors manifested a very unusual interest in the
2. Plaintiff testifies that he took the car at Farnam street for South Omaha; that he informed the conductor that he wanted to leave the car at Twenty-fourth and G-streets, and when it arrived at G street the conductor notified him; that it was then about 12 o’clock at night; that it was an open car; that he was sitting on the second seat from the rear and got off on the west side; he immediately passed around the back end of the car, intending-to cross the parallel track and go east on G street; that, after the car on which he had arrived had left, he stepped between the two tracks and looked both north and south and listened, but did not see nor hear any approaching car; he then stepped onto the east track- and was immediately struck by a north-bound car. His foot was crushed, and he was otherwise injured, and he says that he crawled on his hands and knees along between the tracks toward H street, about half a block, and then crossed over the west track, and became unconscious, and so remained until about 10 o’clock of the next day, when he found himself in the hospital in South Omaha. He says he did not see the approaching car until it struck him, and then saw it again after it had gone about two blocks. The defendant insists that it is impossible that he should have been injured in the manner which he describes; that his story
It was claimed by the defendant that the plaintiff was in an intoxicated or semi-drunken condition, so that he was unable to form any definite purpose, or to properly take care of himself. The conductor of the car on which he rode to South Omaha and the police officer who was on the car at the time testified that the plaintiff was asleep all of the way from Omaha, and the defendant offered to prove by these two witnesses that the plaintiff was intoxicated, and was unable to walk steadily, and also offered to prove, by the physician who saw him a few minutes after the accident, that the plaintiff had been drinking intoxicating liquors, and made similar offers of proof by other witnesses. This evidence was excluded by the court, on the ground that there was no allegation in the answer that the plaintiff 'was intoxicated at the time. The defendant asked leave to amend the answer and include that allegation. The court refused to allow such amendment. Under the circumstances of the case, and in the condition of the evidence and record at the time, we think
3. The plaintiff’s allegations of negligence on the part of defendant rest entirely upon his OAvn unsupported testimony. He says that, after the car on Avhich he Avas riding had gone on, he stood betAveen the íavo tracks and surveyed the situation. The car Avas approaching then at the rate of 25 or 30 miles an hour, but he heard no sound, although his hearing was good at the time. He saAV the car after it struck him, and saw it again tAvo blocks farther on, but he did not see it approaching. He says that it had no headlight, and we are to infer from his evidence that it contained no light of any kind that could be seen. He is, of course, mistaken in saying that a street car approaching at that rate of speed made no noise that could be heard by one who was listening.
It is urged in plaintiff’s brief that, it having been held in the former decision of this case that the evidence justified submitting the case to the jury, that holding be
The judgment of the district court is therefore reversed and the cause dismissed.
Reversed and dismissed.