Fitzgerald v. Omaha & C. B. St. Ry. Co.

Citation97 Neb. 856,151 N.W. 931
Decision Date13 March 1915
Docket NumberNo. 17969.,17969.
CourtSupreme Court of Nebraska
PartiesFITZGERALD v. OMAHA & C. B. ST. RY. CO.

OPINION TEXT STARTS HERE

Syllabus by the Court.

Issues of negligence and contributory negligence are questions for the jury, where the evidence is sufficient to sustain a verdict in favor of plaintiff.

At a street intersection the driver of a vehicle may attempt to cross a street railway track ahead of an approaching car where he is justified in believing there will be sufficient time to do so, if the car is operated at its usual and ordinary rate of speed.

In an action to recover from a street railway damages for negligently running into a vehicle at a street intersection, the case may be submitted in the double aspect of permitting the jury to find whether defendant failed to exercise ordinary care in controlling the speed of the car, or to find whether the motorman, after discovering the peril of the driver, failed to use ordinary care to avoid a collision, where those issues are raised by pleadings and contested by proofs.

Error cannot be predicated on rulings permitting answers to questions properly propounded to plaintiff's witnesses on redirect examination to explain opinions expressed in answer to similar questions propounded to the same witnesses on cross-examination.

Appeal from District Court, Douglas County; Sears, Judge.

Action by Alice Fitzgerald, as administratrix of the estate of Michael Fitzgerald, deceased, against the Omaha & Council Bluffs Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John L. Webster and W. J. Connell, both of Omaha, for appellant.

Smyth, Smith & Schall, of Omaha, for appellee.

ROSE, J.

The action is one to recover damages in the sum of $10,000 for alleged negligence resulting in the death of Michael Fitzgerald. Defendant operates a street railway in Omaha, and with double tracks occupies a strip 15 feet wide in the center of Farnam street, a public thoroughfare running east and west with a paved roadway 42 feet in width. On the north track the cars run west, and on the south track they run east. Thirty-Eighth avenue crosses Farnam street at right angles. Fitzgerald, seated in the county ambulance, May 27, 1911, drove a team of horses northward on the east side of Thirty-Eighth avenue. After the horses had crossed the street railway tracks on Farnam street the ambulance was struck by a west-bound street car. Fitzgerald was thrown to the pavement and was fatally injured. His widow, as administratrix of his estate, is plaintiff. She pleaded that defendant ran the car at a negligent rate of speed and failed to exercise ordinary care to avoid a collision after her husband's peril had been discovered. Defendant denied that it was guilty of the negligence charged, and pleaded contributory negligence on the part of the driver of the ambulance. The jury rendered a verdict in favor of plaintiff for $5,000, and from a judgment for that sum, defendant has appealed.

[1][2][3] Error in refusing to direct a verdict for defendant is the first assignment presented. It is asserted that the evidence is insufficient to show actionable negligence of the motorman. It is also urged that the accident was caused by the negligence of the driver of the ambulance. In this connection it is insisted that the car was approaching Thirty-Eighth avenue at a lawful rate of speed; that the horses turned to the right in the intersection, indicating a purpose on part of the driver to go east on Farnam street without crossing the tracks, but that, instead of doing so, he drove northward in front of the approaching car when a collision was inevitable, though he could have seen and heard the car had he looked and listened; that the gong was sounded; that the car was under control; and that it was stopped at the point of impact. There is some proof tending to support the theory of defendant, but its conclusions are not unavoidable deductions from the evidence and the law. There were several eyewitnesses. The ambulance attracted attention. It was a heavy vehicle with a red cross on the sides of the cover. The motorman recognized it as the county ambulance. When it appeared in the intersection two automobiles and a wagon, which had approached from the west on the south side of Farnam street, were stopped to let it pass. The occupant of the wagon testified that the ambulance passed within about 6 feet of him; that the horses came into the intersection on a slow trot, without showing an inclination to turn east, and went straight north; that they did not stop as they passed over Farnam street; and that their gait at the time of the collision was the same as when they entered the intersection. Occupants of the automobiles testified to the facts as they observed them. The testimony of the witnesses mentioned and of others tends...

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3 cases
  • Guy v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • 14 Diciembre 1920
    ...97 N. W. 160;McQuisten v. R. Co., 147 Mich. 67, 110 N. W. 118;Omaha St. R. Co. v. Mathiesen, 73 Neb. 820, 103 N. W. 666;Fitzgerald v. R. Co., 97 Neb. 856, 151 N. W. 931;Cincinnati R. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 L. R. A. 276;Smith v. Union Trunk Line, 18 Wash. 351, 51 Pac. 40......
  • Guy v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • 14 Diciembre 1920
    ......Detroit U. R. Co., 135 Mich. 85 (97 N.W. 160); McQuisten v. Detroit C. S. R. Co., 147 Mich. 67 (110 N.W. 118);. Omaha St. R. Co. v. Mathiesen, 73 Neb. 820 (103 N.W. 666); Fitzgerald v. Omaha & C. B. S. R. Co., 97 Neb. 856 (151 N.W. 931); Cincinnati St. R. Co. v. ......
  • Fitzgerald v. Omaha & Council Bluffs Street Railway Company
    • United States
    • Supreme Court of Nebraska
    • 13 Marzo 1915

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