Blado v. Draper
| Decision Date | 25 September 1911 |
| Docket Number | No. 16,524.,16,524. |
| Citation | 89 Neb. 787,132 N.W. 410 |
| Parties | BLADO v. DRAPER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The driver of an automobile upon a public street or highway, who, in attempting to pass a carriage from the rear, so carelessly and negligently handles his car as to strike the carriage and injure the occupant thereof, who is without fault, is liable for the injuries caused by such negligent act.
Where the district court has properly submitted a controverted fact to the jury for their determination, their finding thereon should not be set aside by a reviewing court, unless it can be said to be clearly wrong.
If the district court has on his own motion fairly and fully instructed the jury on defendant's theory of the case, it is not error for the court to refuse defendant's request for additional instructions thereon.
It is not reversible error to permit a witness, who is well skilled in the use of automobiles and is accustomed to handling and driving them, to testify as to the distance in which such a machine may be stopped when going at different rates of speed, where on the trial of a cause that question is or may become material.
A new trial should not be granted upon the ground of newly discovered evidence where such evidence appears to be merely cumulative, or is of a doubtful or equivocal character.
Evidence examined, and found sufficient to sustain the amount of the judgment rendered by the district court.
Appeal from District Court, Lancaster County; Cornish, Judge.
Action by Fredericka Blado against Thomas Draper. Judgment for plaintiff, and defendant appeals. Affirmed.
Geo. A. Adams, for appellant.
G. W. Berge, for appellee.
Action in the district court of 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] 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.
[2] 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...
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