Olson v. Omaha & Council Bluffs Street Railway Company

Decision Date26 May 1936
Docket Number29630
Citation267 N.W. 246,131 Neb. 94
PartiesRUTH OLSON, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. " Whether contributory negligence of the plaintiff precludes recovery in whole or in part in an action for negligent injury is determined by the law of the place of wrong." Restatement, Conflict of Laws, § 385.

2. Under the laws of Iowa, the burden is upon a plaintiff suing for damages for injuries in a collision to plead and prove freedom from contributory negligence. This burden never shifts. Schelldorf v. Cherry (Iowa) 264 N.W. 54.

3. " A, in state X, is injured by the alleged negligence of B. A sues B in state Y. By the law of X, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of Y contributory negligence is an affirmative defense to be pleaded and proved by the defendant. A must show his freedom from contributory negligence." Restatement, Conflict of Laws, § 595 (Illustration).

Appeal from District Court, Douglas County; Leslie, Judge.

Action by Ruth Olson against the Omaha & Council Bluffs Street Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Kennedy, Holland & De Lacy, for appellant.

Gray & Brumbaugh and Roy W. Smith, contra.

Heard before GOSS, C. J., ROSE, DAY, PAINE and CARTER, JJ., and YEAGER, District Judge.

OPINION

GOSS, C. J.

Plaintiff, while riding a horse in Council Bluffs, Iowa, was injured in a collision with a street car of defendant. She sued in Douglas county, Nebraska, and had a verdict for $ 25,000. The district court ordered a remittitur of all in excess of $ 18,000, which was complied with. Judgment was entered for that sum. Defendant appealed. Plaintiff asks a restoration of the amount remitted. Comp. St. 1929, sec. 20-1929.

Plaintiff alleges that about 9:30 on the evening of July 16, 1932, while returning from a ride on a saddle horse, and in Council Bluffs, Iowa, a street car coming in the opposite direction and operated carelessly and negligently collided with her horse, as a result of which she was grievously injured.

Defendant's answer admits the collision, but denies that its motorman was guilty of any negligence causing or tending to cause the accident. Then follows this paragraph:

"Defendant, further answering, alleges and says that this accident happened in the state of Iowa, under the laws of the state of Iowa, and plaintiff is required to prove that she was free from any negligence causing or contributing to cause said accident, and that she was free from contributory negligence, and under the laws of Iowa any contributory negligence upon the part of the plaintiff bars a recovery, and in this connection your defendant alleges and says that its street car was in full view, with the proper lights on, and that the accident in question was the direct and proximate result of plaintiff's own negligence which caused and contributed to cause said accident; that, at the time of the said accident, she was riding said horse at a careless and negligent rate of speed; that she did not have it under control; that she had plenty of space to pass said car, but carelessly and negligently allowed said horse to come over and collide with your defendant's car, and because thereof plaintiff is precluded from maintaining her action against this defendant."

Under this plea cases from the Iowa supreme court were admitted in evidence as follows: Zellmer v. Hines, 196 Iowa 428, 192 N.W. 281; Middleton v. City of Cedar Falls, 173 Iowa 619, 153 N.W. 1040; Bird v. Hart-Parr Co., 165 Iowa 542, 146 N.W. 74; Coleman v. Iowa R. & L. Co., 192 Iowa 1331, 186 N.W. 642; In re Estate of Hill, 202 Iowa 1038, 208 N.W. 334; Sanderson v. Chicago, M. & St. P. R. Co., 167 Iowa 90, 149 N.W. 188; Merchants' Transfer & Storage Co. v. Chicago, R. I. & P. R. Co., 170 Iowa 378, 150 N.W. 720; Dusold v. Chicago G. W. R. Co., 162 Iowa 441, 142 N.W. 213; Drier v. McDermott, 157 Iowa 726, 141 N.W. 315; Portman v. City of Decorah, 89 Iowa 336, 56 N.W. 512; Carlin v. Chicago, R. I. & P. R. Co., 37 Iowa 316. These cases show that, in such a case as involved here, plaintiff must be free from contributory negligence in order to recover. That is a substantive part of a plaintiff's cause of action whether he sue in Iowa or Nebraska.

In a recent case, decided December 17, 1935, and not cited in the foregoing list provided by defendant, the Iowa court said: "In action for injuries sustained in automobile collision, plaintiff must plead and prove freedom from contributory negligence, which burden never shifts to defendant." Schelldorf v. Cherry, 264 N.W. 54 (220 Iowa 1101).

The instructions, in four different paragraphs, gave force and effect to the Iowa law by stating, in various forms, that the verdict should be for defendant if the jury found from the evidence that plaintiff herself was guilty of negligence contributing in some degree to the happening of the collision. Two other instructions told the jury, if they found plaintiff was riding her horse on a run up to about the time of the accident and it then swerved so as to come in contact with the street car, the verdict must be for defendant. These instructions all recognized the Iowa law as controlling the substantive rights of the parties as declared by the law of that state where the injury occurred.

But, when the trial court came to the burden of proof, it instructed the jury as follows:

"The burden of proving negligence or contributory negligence rests upon the party charging it.

"The defendant having alleged in his (its) answer to the plaintiff's petition that the contributory negligence on the part of the plaintiff was the proximate cause of the accident complained of, the burden is upon the defendant to establish by a preponderance of the evidence such contributory negligence on the part of the plaintiff, and that such...

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    • 26 Mayo 1936
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