Harris v. Lincoln Traction Company
| Decision Date | 04 April 1907 |
| Docket Number | 14,699 |
| Parties | WALLACE HARRIS, APPELLANT, v. LINCOLN TRACTION COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: EDWARD P HOLMES, JUDGE. Affirmed.
AFFIRMED.
Halleck F. Rose and W. B. Comstock, for appellant.
Clark & Allen, contra.
DUFFIE C. ALBERT and JACKSON, CC., concur.
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 onto 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 familiar rule that, on demurrer to the evidence, the party demurring must be treated as admitting all facts proved and all the jury might infer from the evidence of his adversary. Bearing in mind this rule, we are required to determine whether any fact which plaintiff's evidence tends to prove disclosed a case which should have been submitted to the jury. The evidence in brief is to the following effect: The plaintiff was driving two horses to a covered wagon west on O street, on the south side of defendant's double tracks. When between Fifteenth and Sixteenth streets, he crossed diagonally from south to north in a slow trot, and, while so crossing, the electric car ran into the rear left wheel of the wagon from behind, causing him to be thrown from the wagon to the brick pavement. Before attempting to cross defendant's tracks, he did not look or listen for the approach of the car, and he could not, while crossing, see a car approaching from the east, on account of the wagon being covered. On cross-examination he stated that he could not remember that he thought of any danger from an approaching car, although he was well acquainted in the city, and knew that cars were run frequently east and west upon O street. The witnesses testified that the gong of the car was not sounded before the collision; that the car was running from 12 to 15 miles an hour; that the attention of one witness was directed to the car when distant about 40 or 50 feet from the wagon, and that the car was stopped within a distance of from 10 to 15 feet after the collision occurred. It is also shown that the street railway tracks are in plain sight from the point where the injury occurred for nearly a mile east, so that the plaintiff could have seen a car approaching from that distance, and the motorman could have observed a wagon upon the track for the same distance. Under these circumstances was there any case to go to the jury?
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