James v. Brothers
| Decision Date | 29 January 1915 |
| Docket Number | 17,998 |
| Citation | 150 N.W. 1013,97 Neb. 619 |
| Parties | JOSEPH H. JAMES, APPELLEE, v. HAYDEN BROTHERS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Greene Breckenridge, Gurley & Woodrough, for appellant.
Jefferis & Tunison, contra.
This was an action for damages for personal injuries. The plaintiff alleged in his petition that the servant and employee of the defendant, while in the course of defendant's business, carelessly and negligently omitted to control a horse and vehicle which he was then driving, and negligently and carelessly drove and managed said horse and vehicle at a rapid and dangerous rate of speed, and without regard to the rights of the plaintiff, who was upon the sidewalk on one of the streets of the city of Omaha, and, by reason of said negligence, the horse and vehicle violently ran upon and across said sidewalk, and against and upon the plaintiff with great force and violence, while the plaintiff, in the exercise of ordinary care, and while in plain view of said driver, was walking eastward on the south sidewalk of Izard street and in front of a gateway leading into the feed stables of the defendant, and thereby struck and knocked the plaintiff with great force and violence upon the ground, and dragged him and ran over and injured him severely and permanently. Defendant, by its answer, admitted that it was a corporation, organized and existing under and by virtue of the laws of the state of Nebraska; admitted that on or about November 3, 1911, a collision occurred between plaintiff and a horse and vehicle belonging to defendant; denied each and every allegation of the plaintiff's petition and, further answering, alleged that plaintiff's injuries, if any, resulting from the aforesaid collision, were received through plaintiff's own carelessness and negligence, and not through that of the defendant. The cause was tried in the district court for Douglas county. The jury returned a verdict for the plaintiff for $ 4,000, on which the court rendered judgment, and the defendant has appealed.
It appears that on the 3d day of November, 1911, the plaintiff while walking east on the sidewalk on the south side of Izard street, in the city of Omaha, and while passing the defendant's barn, where it kept its teams and delivery wagons, was run down by the horse and wagon of defendant, which a servant of the defendant was driving from the street into defendant's yard. The accident, as described by the witnesses, occurred as follows: The plaintiff, while lawfully passing along the sidewalk in the prosecution of his own business, had occasion to pass defendant's premises where there was a driveway from the street across the sidewalk into defendant's yard and barn. It was a cold day, and plaintiff had on an overcoat, with his hands in his pockets. He was walking along the sidewalk looking neither to the right nor to the left. Just at that instant, the defendant's servant, with a horse and wagon, on his way to the barn, came up behind the plaintiff from the west and turned in onto the driveway. As the horse was about to collide with plaintiff, the driver called, "Look out " and at the same instant the horse's head struck the plaintiff and knocked him down. The horse veered slightly to the east, the wagon ran against the plaintiff and dragged him into the yard. The person who was driving the horse uttered a profane exclamation and went on his way, while another of defendant's servants came out from the barn, helped the plaintiff up, took him into the barn, washed his cuts and bruises, brushed his hat and clothing, and started him on his way. The plaintiff went to his home, and sent for Dr. Bliss, who attended to his injuries, which will hereafter be...
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