Chi., B. & Q. R. Co. v. Starmer
| Decision Date | 31 May 1889 |
| Court | Nebraska Supreme Court |
| Parties | CHICAGO, B. & Q. R. CO. v. STARMER. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. The evidence is examined, and held sufficient to sustain the finding by the jury of negligence on the part of plaintiff in error, and the absence thereof on the part of defendant in error.
2. Where, in an action for damages by reason of a personal injury, the court instructed the jury, among other things, that in case they found for the plaintiff in the action they could take into consideration bodily pain and suffering, loss of time, and reduction of plaintiff's ability to earn money in her business and calling, the instruction was sustained as being applicable to the evidence produced on the trial.
3. The ruling of the district court refusing to give an instruction asked must be excepted to in order to justify the supreme court in reviewing it.
4. The verdict and judgment held not to be excessive under the evidence.
Error to district court, Adams county; GASLIN, Judge.Marquett & Deweese, for plaintiff in error.
C. H. Tanner, for defendant in error.
This action arose out of a collision between a train of cars and a buggy in which defendant in error and her father were riding, while attempting to cross the railroad track in the city of Hastings, at the crossing of said tract and Lincoln avenue, a public street. Defendant in error filed her petition in the district court, alleging the facts of the collision, and injury to herself, claiming that the accident was caused by the negligence and carelessness of the railroad company, its agents and servants, in not sounding the whistle or ringing the bell for the crossing, etc., and alleging the absence of negligence on her part. Plaintiff in error answered, denying any carelessness on its part, and pleading contributory negligence on the part of defendant in error. The line of plaintiff's road runs through the city of Hastings from east to west; and the crossing where the collision occurred is on the railroad track on the avenue, which runs north and south. The plaintiff and her father were in a buggy, driving south, across the track. Both sides of the street as it approaches the crossing were occupied by buildings, some of which were constructed by plaintiff in error, and which interfered with the view up and down the track until the person seeking to cross came near to the track. The north track was the side track where cars were switched back and forth, and sometimes left standing. One of these cars stood on this north side track, east of the wagon crossing, and extended into the street,--some of the witnesses say five or six feet, and others say its entire length; but the wagon crossing itself was not interfered with by this car. This north track was about 12 feet distant from the south one, and on this second track box-cars were being pushed backwards to the west by the switchengine; and it was these cars and engine with which the buggy that defendant in error and her father were riding in collided. The foregoing facts were substantially conceded by both parties. The trial was had to a jury, which resulted in a verdict in favor of defendant in error. A motion for a new trial was filed, which was overruled, and a judgment rendered on the verdict. Plaintiff in error now presents the cause to this court by proceedings in error.
It is contended by plaintiff in error-- First, that there was no proof of negligence on its part; second, that there was contributory negligence on the part of defendant in error; third, that the trial court erred in its instructions to the jury; fourth, that it erred in refusing to give instructions asked by plaintiff in error; and, fifth, that the verdict...
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