Blado v. Draper

• Decision Date: 25 September 1911
• Docket Number: 16,524
• Citation: 132 N.W. 410,89 Neb. 787
• Parties: FREDERICKA BLADO, APPELLEE, v. THOMAS DRAPER, APPELLANT
• Court: Nebraska Supreme Court

132 N.W. 410

89 Neb. 787

FREDERICKA BLADO, APPELLEE, v. THOMAS DRAPER, APPELLANT

No. 16,524

Supreme Court of Nebraska

September 25, 1911

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

George A. Adams, for appellant.

George W. Berge, contra.

BARNES J. SEDGWICK, J., not sitting.

OPINION

BARNES, J.

Action in the district court for Lancaster county to recover damages sustained by the plaintiff which are alleged to have been caused by defendant's negligence in driving his automobile upon one of the public streets of the city of Lincoln. The plaintiff had the verdict and judgment, and the defendant has appealed.

It appears that on the 1st day of March, 1908, the plaintiff and her husband were driving south on Eleventh street in the city of Lincoln with a single horse and carriage, and were overtaken by the defendant who was driving his automobile; that, when they were a short distance north of the alley between A and B streets, the defendant, in attempting to pass their carriage, which was within four or five feet of the west curb and on the right-hand side of Eleventh street, and without any warning, struck the left hind wheel of their carriage with the front fender of his machine. The force of the collision lifted plaintiff's buggy bodily from the ground, bent the axletree, broke the reaches, and threw the plaintiff forward upon the dashboard and at least partially out of the carriage, and thus inflicted the injuries of which she complains. The foregoing facts relating to the accident are not seriously disputed by the defendant and may be taken as the basis for our consideration of his appeal.

1. Defendant's first contention, as stated in his brief, is that the judgment is not supported by the evidence. From an examination of the bill of exceptions, it seems clear that defendant was negligent in not turning his automobile sufficiently to the left in attempting to pass the plaintiff's carriage so as to avoid the collision; and, unless there was some immediate and intervening cause which prevented him from so doing, it must be conceded that his negligence was such as would support the verdict and judgment of which he now complains.

To avoid liability, it was contended by defendant at the trial, and is now urged on his appeal, that when he was in the act of passing the plaintiff's carriage he was suddenly confronted by a little girl riding a bicycle directly in front of his machine, and, in order to avoid striking and killing her, he was compelled to turn suddenly to the right, and that this was the cause of his striking plaintiff's carriage. It appears that this was one of the facts litigated in the trial court and which was there submitted to the jury; that on that question there was a conflict of evidence, with a preponderance of the testimony against defendant. The jury found against him on that question, and we cannot say that the evidence was insufficient to sustain the verdict. From reading the record, it is apparent that the jury believed that the defendant was guilty of negligence in carelessly and recklessly driving his automobile at such a rate of speed as to cause the injuries complained of, and we are not at liberty to overturn their verdict.

2. The defendant's second complaint, as expressed in his brief and argument, is that the district court erred in failing to instruct the jury on the law...