Harris v. Lincoln Traction Co.

Decision Date04 April 1907
PartiesHARRIS v. LINCOLN TRACTION CO.
CourtNebraska Supreme Court

78 Neb. 681
111 N.W. 580

HARRIS
v.
LINCOLN TRACTION CO.

Supreme Court of Nebraska.

April 4, 1907.



Syllabus by the Court.

[111 N.W. 580]

A motion to direct a verdict is in effect a demurrer to the evidence of the opposing party, and in passing on the same the court should consider as established all the facts proved and all inferences which can be logically and reasonably drawn from the evidence.

[111 N.W. 581]

One who negligently attempts to cross a street railway track in front of an approaching car cannot recover for injuries sustained by being thrown from his wagon by impact with the car, unless those in charge thereof willfully or wantonly produce the collision.

The mere fact that the car was running at a rate of speed prohibited by an ordinance of the city does not of itself entitle the plaintiff to recover.

Evidence examined and held insufficient to require its submission to the jury.


Commissioners' Opinion. Department No. 2. Appeal from District Court, Lancaster County; Holmes, Judge.

Action by Wallace W. P. F. Harris against the Lincoln Traction Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Rose & Comstock, for appellant.

Clark & Allen, for appellee.


DUFFIE, C.

This action was brought by appellant against the Lincoln Traction Company to recover for injuries received by being thrown from his wagon. His petition alleges that, while endeavoring to cross the defendant's tracks, it carelessly and negligently ran its car at the rate of 15 miles an hour, in violation of the ordinance of the city, and without using reasonable diligence in watching for teams and carriages on the track and without stopping the car as promptly as possible; that, without giving any warning or signal of the approach, it ran its car against the vehicle in which plaintiff was riding, causing him to be thrown violently on to the brick pavement on the street. It is further alleged that defendant, after seeing the perilous situation of the plaintiff, negligently and carelessly failed to stop the car or slacken the speed. The answer is a general denial, coupled with a plea of negligence on the part of the plaintiff.

After the plaintiff had introduced his proof and rested, the court, on motion of the defendant, directed a verdict of “no cause of action,” based upon the theory that by the plaintiff's own showing he was guilty of contributory negligence. A motion to direct a verdict for the defendant is in effect a demurrer to the plaintiff's evidence. It is a...

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