Buzzello v. Sramek
| Decision Date | 15 May 1923 |
| Docket Number | 22378 |
| Citation | 193 N.W. 743,110 Neb. 262 |
| Parties | CAMILLO BUZZELLO, ADMINISTRATOR, APPELLANT, v. THEODORE SRAMEK, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.
AFFIRMED.
John O Yeiser and E. A. Conaway, for appellant.
Kennedy Holland, DeLacy & McLaughlin, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and GOOD, JJ., BEGLEY, District Judge.
This action was brought by plaintiff as administrator of the estate of Raffaelle Buzzello, a child two years of age, who was fatally injured May 24, 1920, by an auto-mobile belonging to defendant which defendant had left standing upon one of the streets of the city of Omaha. The street descended at a 10 per cent. grade to the west, and it is alleged that defendant left his car on the south side of the street facing west with the engine running, without having the brakes securely set or the wheels "at the proper degree against the curb;" that the vibrations of the engine caused the car to break the hold of the brakes, and through the force of gravity descend the street, cross the curb thereof, and produce the injury complained of.
In his answer defendant made a general denial of negligence, and alleged that he had parked the car against the curb and securely set the brakes, which were in good condition, shut off the engine and left the car in such a position that it could not be moved without the interference of some outside agency, and that the movement of the car was the result of some person, unknown to defendant, having tampered with the car and released the brakes. The cause was tried to a jury, and from a verdict and judgment for defendant, plaintiff has appealed.
Plaintiff offered the testimony of a neighbor who witnessed the accident. He testified that he had seen the car parked at the curb in front of defendant's home; that it was parked "in a diagonal shape." He saw the car run down the hill and strike the child. He went to the car immediately after the accident, but could not say whether the engine was running or not. Having been recalled for redirect examination, and being again cross-examined as to the position of the car when parked, in answer to the question, "The front wheels were up against the curb?" he answered, "It looked that way; yes, sir." Two other witnesses who saw the car strike the child were called by plaintiff. But they had not seen the car at the curb, knew nothing of the way in which it had been parked or of the agency which pet it in motion.
Defendant testified that he parked the car at an angle of about 45 degrees to the curb, with the emergency brake securely set and that he stopped the engine. In this he is corroborated by the testimony of his sister-in-law, who was a passenger with him at the time he parked the car, and by the testimony of a pedestrian who passed on the north side of the street after the car had been parked and who subsequently saw the car running down the hill, and witnessed the accident. A neighbor who lived across the street described the parking of the car in substantially the same way. ...
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