Burton v. Lincoln Traction Co.

Citation184 N.W. 73,106 Neb. 521
Decision Date07 July 1921
Docket NumberNo. 21701.,21701.
PartiesBURTON v. LINCOLN TRACTION CO.
CourtSupreme Court of Nebraska

106 Neb. 521
184 N.W. 73

BURTON
v.
LINCOLN TRACTION CO.

No. 21701.

Supreme Court of Nebraska.

July 7, 1921.



Syllabus by the Court.

“Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established.” City of Omaha v. Houlihan, 72 Neb. 326, 100 N. W. 415.

Evidence in the case at bar examined, and held, the same required the application of the rule above quoted.


Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Daniel H. Burton against the Lincoln Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

[184 N.W. 73]

Hall, Baird & Williams, of Lincoln, for appellant.

H. N. Mattley, of Lincoln, for appellee.


Heard before MORRISSEY, C. J., FLANSBURG and ROSE, JJ., and DICKSON and TROUP, District Judges.

TROUP, District Judge.

The plaintiff. Daniel H. Burton, brings this action against the defendant, Lincoln Traction Company, to recover damages for personal injuries to himself alleged to have been sustained through the negligence of the defendant company by a collision of one of the defendant's street cars with plaintiff's team and wagon at the intersection of Twenty-Seventh and W streets in the city of Lincoln.

The negligence charged against the defendant is that just before and at the time the accident happened, it was running its car at an unreasonable and reckless rate of speed, and that it was negligent in the operation of said car in that it failed to keep the same under proper control as it approached the intersection where the accident occurred, and although the plaintiff, before and at the time he entered upon said intersection, was in plain view of the defendant's motorman operating said car, he negligently failed to reduce its speed or give plaintiff timely warning of the approach of said car, thus colliding with plaintiff's wagon and injuring the plaintiff.

The defendant, answering, denies the averments of negligence attributed to the defendant, and alleges that the injuries received by the plaintiff were due to the negligence of the plaintiff in attempting to cross the defendant's track in front of the defendant's moving car under such circumstances that it was impossible for the operator of said car to avoid the accident.

The reply of plaintiff denies the allegations of the answer attributing negligence to the plaintiff. A trial of the case before court and jury resulted in a verdict and judgment for plaintiff, from which defendant appeals.

The defendant having made a motion for a directed verdict at the close of plaintiff's evidence, and renewing the same at the close of all of the evidence, and making a like...

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