Forslund v. Swenson

• Decision Date: 21 April 1923
• Docket Number: 22353
• Parties: CHARLES A. FORSLUND, APPELLEE, v. HENRY F. SWENSON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

192 N.W. 649

110 Neb. 188

CHARLES A. FORSLUND, APPELLEE, v. HENRY F. SWENSON ET AL., APPELLANTS

No. 22353

Supreme Court of Nebraska

April 21, 1923

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

Stout Rose, Wells & Martin, Jefferis, Tunison & Wilson and Ralph A Van Orsdel, for appellants.

Gurley, Fitch & West, contra.

Heard before MORRISSEY, C. J., LETTON, DAY and DEAN, JJ., BUTTON, District Judge.

OPINION

LETTON, J.

This is an appeal from a judgment against defendants rendered in an action for personal injuries. Plaintiff alleges that he was severely injured by the overturning of an automobile which he was driving, by reason of it coming in contact with a pile of coal which had been negligently placed and suffered to remain in a street by the defendants. There is much conflict in the evidence, but the jury adopted the theory of plaintiff.

The facts are as follows: Defendant Swenson, who resides on the north side of Hawthorne avenue in Omaha, and upon the east side of a driveway leading to the rear part of the lot, had ordered from defendant Rosenblatt, a coal dealer in the city, a number of tons of semi-anthracite coal. Part of the coal was to be delivered by the coal dealer into bins in the cellar of an apartment house at No. 3624 Hawthorne avenue. According to the testimony of teamsters employed by Rosenblatt, when they attempted to deliver the coal as ordered, Mrs. Swenson told them that the bins in the cellar were not ready, and directed them to unload the coal in the street near the driveway, which they did. Several tons of the coal were unloaded, part of it in the parking space next to the north curb line, and the greater part in the street east of the driveway.

A lantern with a red light was placed upon the coal pile on the first night. The next afternoon one of Rosenblatt's men took a red lantern to Mrs. Swenson, who said she would see that it was lighted and placed upon the pile of coal that night. This was not done until after the accident. Plaintiff was driving a Ford automobile with the top down, occupying the front seat. There were two women in the back seat. He drove from the north into Hawthorne avenue a short distance west of the place of the accident, and turned eastward on that street. He testifies that he was driving about 10 miles an hour, and that it was very dark on the street.

There is some evidence that, not only was there a pile of coal near the north curb, but lumps of coal were scattered at intervals from the north to the south curb of the street. The paved portion of the street is 20 feet in width. Plaintiff testifies that, as he drove along, the first he knew was a sudden jerk, then he felt himself going out of the car, but was unable to tell where he lit. He was found by a man, who heard the crash, lying close to the north curb of the street a few feet east of the coal pile. The automobile was lying on its left side, facing northward on the east side of the east coal pile, with the right front wheel broken and the engine still running. The women were thrown out toward the south, or at least, when first seen, were southward of the car near the south side of the street.

There was evidence on the part of defendants that there were some scratches, or marks, on the curb at the south side of the street a little west of the coal pile, and that some broken spokes from the wheel were found not very far from that point. Defendants insist that the physical facts in evidence conclusively establish that the plaintiff so carelessly drove his car against this curb as to smash the wheel, and as a result the car was diverted across the street to the position where it was found on the coal pile. We consider, however that the determination of the question whether the car struck the south curb, which collision caused its collapse, or whether it struck a lump of coal in the street, or the coal pile on the north side of the street, was a question for the jury, and that, in the state of the evidence, the conclusion drawn by them from the testimony should not be disturbed by a reviewing court. While each of the defendants attempts to establish his freedom from negligence, we think the facts are sufficient to support the verdict for damages in favor of the plaintiff against both of them. It was negligence on the part of Rosenblatt to unload the coal in the public street and leave it without a danger signal at night. Proper precautions were taken by him the first night, but the second night he relied upon Mrs. Swenson to perform this duty, and for her negligence he is liable. It is true she denies the testimony of Rosenblatt's witnesses, but the jury accepted their version of the facts. It was within the knowledge of defendant Swenson that the coal he had ordered had been unloaded on the street in front of his premises. Mrs. Swenson had at least apparent authority to direct the men delivering the coal as to what should be done with it, when the bins were not ready. She directed that it be placed in the street, and Swenson, having knowledge that the coal in process of delivery to him was lying in the street, took no steps to warn travelers upon the highway, or to protect them from danger incident to the coal being in...