Bevard v. Lincoln Traction Company
| Decision Date | 11 November 1905 |
| Docket Number | 13,957 |
| Citation | 105 N.W. 635,74 Neb. 802 |
| Parties | HANNAH BEVARD v. LINCOLN TRACTION COMPANY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Frederick Shepherd, for plaintiff in error.
Clark & Allen, contra.
This is an action for negligence against the defendant as a common carrier of passengers. The material allegations of the plaintiff's petition are that on the fourth of July 1903, "the plaintiff was a passenger on the city-bound car over the last particularly described track, and, having paid her fare, was, without negligence or fault on her part, seated in a regular seat provided for passengers on the right hand side of said car; that at about the corner of F and Seventeenth streets, about as the car was rounding a curve, there was an explosion under the same, caused by the wheel coming in contact with an explosive on the rail, whereby the trap in the floor of the car was forced up and open at the side and close to the plaintiff, and flame and smoke came through from beneath with such suddenness and in such quantity as to terrify and bewilder plaintiff and benumb her faculties, and plaintiff wholly without negligence on her part, but involuntarily and unavoidably, started to her feet in the instinct of self-preservation, and by the motion of the car, and by reason of the said involuntary and unavoidable start, was instantly thrown to the pavement, striking on her head and left shoulder and sustaining painful and permanent injuries of the nature and extent hereinafter shown; that the day on which the said accident occurred was a national holiday, and that during all of said day, and all over the system of the defendant, its cars were constantly exploding torpedoes and other explosives placed on the rails for the purpose of making noise, and that the defendant knew this, and had notice of the danger to the plaintiff and to its other passengers at the time and place above mentioned; that the defendant provided no broom or sweep to said car so as to have removed any explosive matter from the rail; that the defendant failed to provide a floor to said car of sufficient strength and construction to prevent the said trap from flying up and open, and so endangering plaintiff in the manner described; that defendant did not provide any watchman or guards to prevent the explosive from being placed upon the rail, and that it did not provide any guard-rail or other means to keep plaintiff upon the car; and that in all of these respects defendant was negligent."
The defendant filed a general denial, and also pleaded contributory negligence on the part of the plaintiff. At the close of the testimony the defendant moved the court to direct a verdict in its favor, which was done, and the case dismissed.
The evidence shows that the plaintiff, who is a single woman, 49 years old, residing in the city of Lincoln, had gone to the suburb of Normal on the cars of the defendant company about 2 or 3 o'clock in the afternoon; that there were many explosions upon the rail, apparently of torpedoes, as she went out; that she returned about 10 o'clock at night upon one of the cars of the defendant taking the front seat on the right-hand side of the car, a little in front of the trucks. The car was an open one, with a guard rail on one side, the other side being left open for access and egress. On the way home, and at or near the curve at the corner of Seventeenth and F...
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