Boesen v. Omaha Street Railway Company

• Decision Date: 06 February 1909
• Docket Number: 15,922
• Citation: 119 N.W. 771,83 Neb. 378
• Parties: JOHN BOESEN, APPELLEE, v. OMAHA STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

119 N.W. 771

83 Neb. 378

JOHN BOESEN, APPELLEE, v. OMAHA STREET RAILWAY COMPANY, APPELLANT

No. 15,922

Supreme Court of Nebraska

February 6, 1909

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

John L Webster and W. J. Connell, for appellant.

T. W Blackburn and R. S. Horton, contra.

LETTON, J. FAWCETT, J., BARNES, J., concurring in part and dissenting in part.

OPINION

LETTON, J.

This is the fourth appearance of this case in this court. See 68 Neb. 437; 74 Neb. 769; 79 Neb. 381. The facts are fully set forth in the former opinions. On account of the nature of some of the errors assigned, it becomes necessary to notice particularly the issues as now presented by the pleadings. The petition, in substance, alleges that the defendant is a common carrier of passengers operating a street railway in the city of Omaha; that, while the plaintiff was a passenger, the car upon which he was riding, through the negligence of the defendant, suddenly left the track and threw the plaintiff violently to the pavement, and that he was permanently injured by the accident. The answer denies that the car left the track and threw plaintiff to the pavement, avers that the car and track were in good order and condition, and were so long before, at the time of, and after the accident. It also avers that the accident was caused from extraneous causes over which the defendant had no control. It also alleges that the defendant was guilty of contributory negligence in riding upon the running board of the car, denies that the plaintiff has been injured permanently or to any extent, and further contains a general denial. The reply denies the new matter in the answer. The case was tried to a jury, and a judgment rendered for the plaintiff, from which defendant appeals.

1. The first complaint made is that the court should have given an instruction requested by the defendant to the effect that if the jury believed from the evidence that the plaintiff was not thrown from the car, but that he attempted to get off the car when it was in motion, and fell into the street, their verdict should be for the defendant, and it is argued in support of this assignment that the theory and contention of the railway company on this trial are the same as they were at the time this case was before the court for the first time. The defendant is in error upon this point. The issues, as will be observed, are the same as when the case was presented here the last time. After reading the evidence, we adopt and fully agree with the statement made in the opinion by Mr. Commissioner Duffie on that occasion that "we have searched the record in vain for any evidence tending to show that the plaintiff of his own volition got off the car while it was in motion." There was no error in refusing this instruction.

2. The seventh instruction given by the court is said to be erroneous. By the fifth instruction the jury were instructed that a street railway is not an insurer of the personal safety of its passengers, nor is it bound to do everything which possibly might be done to insure their safety. It is bound to exercise the utmost skill, diligence and foresight consistent with the practical conduct of its business, and a failure on its part to exercise such skill, diligence and foresight would be negligence. By the seventh instruction the jury were told, in substance, that the defendant had alleged in its answer the good order and condition of its car and track, and that the accident occurred presumably from extraneous causes which could not be guarded against by the exercise of the greatest care, skill and diligence of the defendant, and the jury were told that if they found "that the derailment of the car on which the plaintiff was riding (should you find that the same was derailed) was one of those unforeseen accidents that could not have been guarded against or prevented by the exercise of the highest degree of care, diligence and foresight on the part of the defendant, consistent with the practical conduct of its business, and that said defendant was not guilty of the slightest negligence which contributed to the said accident, then the defendant would not be liable to the plaintiff for injuries sustained by him, and your verdict should be for the defendant." The defendant calls special attention to the following clause in the seventh instruction: "And that said defendant was not guilty of the slightest negligence"--and contends that this language was highly prejudicial as imposing an undue burden upon the defendant, and that the extent of its duty is to exercise the highest degree of care, diligence and foresight consistent with the practical conduct of its business, and no more.

Instructions should be considered together. Separate clauses or parts of a sentence should not be disconnected from the context, if it is desired to obtain the true meaning of the language. Taking the two instructions referred to together, while the language of the latter may not be entirely proper, we think it impossible that the jury could have been misled with regard to the extent of the duty imposed by law upon the defendant with regard to the care of its passengers, and, when considered in connection with the evidence in this case, we cannot see how this language, even if objectionable in nature,...