Dodds v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 07 June 1920
• Docket Number: 20921
• Citation: 178 N.W. 258,104 Neb. 692
• Parties: AUSTIN E. DODDS, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

178 N.W. 258

104 Neb. 692

AUSTIN E. DODDS, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 20921

Supreme Court of Nebraska

June 7, 1920

APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE.Reversed.

REVERSED AND REMANDED.

John L Webster and William M. Burton, for appellant.

D. L Johnston, W. J. Connell and L. J. Wall, contra.

OPINION

FLANSBURG, C.

Action for damages for personal injuries sustained by the plaintiff when struck by one of defendant's street cars.Verdict for plaintiff.Defendant appeals.

Defendant contends that the plaintiff's version of how the accident occurred is contrary to the undisputed physical facts in the case, and that the verdict is not sustained by the evidence and is contrary to law.

The accident happened on Tenth street in front of the entrance to the Burlington station in Omaha.Tenth street runs north and south.Mason street terminates at the entrance to the station and extends west from Tenth street.

Plaintiff arrived at his office that morning, he says, at two minutes before 8 o'clock, gathered together some papers, went out on the street, and at Sixteenth and Farnum streets waited for a street car, intending to catch a Burlington train due to leave Omaha at 8:20.

He boarded a car, which, defendant's testimony shows would not be due in front of the station until 8:20.The conductor on this car testified that plaintiff showed anxiety about catching the train; that plaintiff asked and was informed as to the time the car would arrive at the station; that the conductor also told him that very often the train would be seen pulling out just as this street car passed over the viaduct before reaching the station, though at some times passengers on this car made the train.The car that morning passed over the viaduct while the 8:20 train was to be seen standing ready to leave.This witness further testified, and in this he was corroborated by two disinterested witnesses, a passenger on the car, and a newsboy who was standing on the street nearby, that just as the car, as it passed south on Tenth street, reached the north side of Mason street, and while the car was running at a rate of three or four miles an hour, the plaintiff swung off and started to hurry across the track behind it.And witness says that he immediately heard a crash, looked back, and saw the plaintiff lying on the pavement, he having been struck by a north-bound car.The newsboy testified that he, just at that time, was waiting to sell papers to any one who might get off this car, and that he saw the plaintiff alight from the car while it was moving and start to run across the parallel track toward the station, and just at that moment the car on that track struck him.The motorman on the car which struck plaintiff testified that he was in the act of slowing the car to stop at the Mason street intersection, since this was a regular stop and a lady passenger was about to get off, and that his car was running not more than three or four miles an hour, when the plaintiff suddenly came running from the rear of the moving south-bound car, was struck by the corner of the north-bound car, and was thrown back upon the west track.The carmen on both cars and a number of disinterested witnesses testified that the north-bound car was going only three or four miles an hour when it struck the plaintiff, and that the gong was repeatedly sounded while the two cars were passing, just before the accident.Several witnesses testified that the north-bound car was stopped within four or five feet after the plaintiff was struck.

The following very significant facts are undisputed: That plaintiff fell to the pavement on the west track and remained there unconscious at a point from 5 to 10 feet north of the center of Mason street, the paved portion of which street is 60 feet wide, and that the front end of the car which struck him, after it stopped, was only 4 or 5 feet north of the place where plaintiff fell; also that the south-bound car from which the plaintiff alighted made its stop, as was regular and customary, at a place south of the paved portion of Mason street, where it remained standing for some time after the accident occurred.This car stopped at a greater distance than 35 or 40 feet south of the place where the plaintiff fell, and it is further established that, at the moment the plaintiff was struck, the rear end of the south-bound car and the front end of the north-bound car were almost even.Upon these essential facts the evidence introduced by both parties is all in accord.

Plaintiff, however, testified that when riding on the south-bound car he was so sure of having plenty of time to catch his train that he gave it no particular thought and was in no hurry.He denied having any conversation with the conductor, and testified positively that he did not alight from the car until it came to a full stop on the south side of Mason street; that after the car stopped he walked back around the rear end, and, when behind it, momentarily hesitated and listened to see if any car was on the other track; that, hearing no noise, he stepped out and was struck so suddenly that he was given no time even to catch sight of the car that struck him.

Two witnesses testified for the plaintiff.They were railway mail clerks and were waiting at the northeast corner of Tenth and Mason streets for a north-bound street car.They were in conversation with each other, but saw the car approaching, they said, when it was in the middle of the block south of Mason street, and also at a point perhaps a car's length from Mason street, and testified that the car at those places was running from 10 to 15 miles an hour.Neither of them saw the car from that time until after the plaintiff had been struck, and were unable to estimate the speed within the intersection.They both started and looked when they heard plaintiff struck by the car.One of them testified that when he looked he saw the plaintiff shooting through the air like a rocket; that the plaintiff was thrown horizontally through the air 4 feet from the ground and about half the width of the street.The other witness looked in time only to see the plaintiff lying in the street, but did not see him strike the pavement.He says the ends of the two cars were then about even, but he could not state how near they were to the center of Mason street.Neither of them heard the gong, but their testimony on that was practically negative.They were engaged in conversation, and very naturally may have failed to hear the gong, which many other disinterested witnesses say was sounded.One of these witnesses for plaintiff, the one who told the unnatural story of the plaintiff's body being hurled 40 feet, was positive in his statement that no gong was sounded; but his testimony shows that he was at that time, standing at some distance facing away from the scene of the accident, engaged in conversation, and on cross-examination he testified that he was not listening for a gong and had no reason to.

Had the plaintiff alighted from the south-bound car after it had stopped and proceeded to cross the parallel track, he could rightfully have assumed that the motorman on the opposite car would be expecting passengers to emerge from the rear of the standing car, and would have the car so under control as to be able to reduce the speed to any extent required, or even stop if necessary to avoid an accident.36 Cyc. 1515;Bremer v. St. Paul City R. Co., 107 Minn. 326, 21 L. R. A. n. s. 887, 120 N.W. 382.

But the plaintiff's story is inconsistent with the physical facts in the case.Plaintiff received a brain injury at the time of this accident.Such injuries have been known in some cases to obliterate entirely the memory of all incidents immediately surrounding the accident, and it may be that plaintiff's memory of the exact facts is lacking or has been perverted by the injury that he then received.

But however that may be, he could not have been struck on the south side of Mason...