Koehn v. City of== Hastings
| Decision Date | 08 December 1925 |
| Docket Number | 23482 |
| Citation | 206 N.W. 19,114 Neb. 106 |
| Parties | OTTO E. KOEHN, ADMINISTRATOR, APPELLANT v. CITY OF-- HASTINGS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: WILLIAM A DILWORTH, JUDGE. Reversed.
REVERSED.
William L. Dowling, Earl J. Moyer, Barnhart & Stewart, J. W. James and C. B. Ellis, for appellant.
W. M Whelan and Bruckman & Paulson, contra.
Heard before MORRISSEY, C. J., DAY, GOOD, THOMPSON and EBERLY, JJ.
Action by Otto E. Koehn, as administrator of the estate of his deceased wife, against the city of Hastings, to recover damages for negligently causing her death.
The action is grounded on sections 1382 and 1383 Comp. St. 1922. Defendant denied negligence, and pleaded the statute of limitations and contributory negligence on the part of Mrs. Koehn. A jury trial resulted in a verdict for defendant. Plaintiff appeals.
Defendant, city of Hastings, is a municipal corporation and a city of the first class, and owns and operates an electric light plant, selling electric current to its citizens and others. Defendant owned a motor truck, which was used by its employees in keeping its lighting plant in repair, and among the tools carried on this truck was a pike pole, about 14 feet long, with a sharp steel point on one end. This pole was carried strapped upon the left side of the truck, with the steel point projecting two or three feet from the rear.
On the morning of July 24, 1920, the defendant's employees parked the truck, with the pike pole so strapped to it, on the west side of Denver street, in the city of Hastings. The rear end of the truck was to the north. Mr. and Mrs. Koehn resided in Norfolk, Nebraska. Upon the morning in question she was visiting with her parents in the city of Hastings. Two guests at the home of her parents desired to go to the railway station, and her father called a taxicab to convey them thither. Mrs. Koehn was invited to ride to the station in the taxicab. She took her position in the front seat and on the right-hand side of the driver. The driver of the taxicab, with his passengers, drove south along Denver street, and, as he approached the point where the city's truck was parked, he observed another truck parked on the east side of the street and opposite the city's motor truck. At about this point he met another automobile coming from the south, and turned to the right, so as to leave room for the other car to pass. He did not observe the pike pole protruding into the street. The sharp end of the pike pole entered the taxicab and struck Mrs. Koehn in the neck, inflicting injuries from which she died a few days later.
There was no substantial conflict in the evidence save as to the angle at which defendant's motor truck was parked and the distance that the point of the pike pole protruded into the street. Plaintiff's evidence tended to show that the motor truck was parked at an angle of about 45 degrees, and that the sharp point of the pike pole protruded some 14 feet into the street, while defendant's testimony tended to show that its motor truck was parked nearly parallel with the curb, and that the sharp point of the pike pole protruded no more than 8 or 9 feet into the street.
The errors assigned relate to rulings on admission of evidence, over objection, and to the giving and refusing of instructions.
Over objection, defendant was permitted to introduce evidence tending to show that, pursuant to conversations had among the employees of the city, the foreman had formulated and adopted a rule that the truck in question should be parked parallel with the curb, and that an employee should be left to guard the pointed pike pole; that, pursuant to this rule, the usage and custom for more than three years had been to so park the truck and guard the pole. There is no pretense that plaintiff's deceased had any knowledge of this rule or custom.
It is a well-settled rule that usage and custom will not justify negligence. If the usage or custom is invalid or unreasonable and is productive of injury, the fact that such custom has prevailed for a long time will not justify a negligent act. Such usage or custom constitutes no defense in an action for negligence. The rule is well stated in the case of Fonda v. St. Paul City R. Co., 71 Minn. 438, 74 N.W. 166, wherein it is said:
Other cases supporting this view are Hamilton v. Chicago, B. & Q. R. Co., 145 Iowa 431; Hansell-Elcock Foundry Co. v. Clark, 214 Ill. 399, 73 N.E. 787; Beidler v. Branshaw, 200 Ill. 425, 65 N.E. 1086; McCartney v. City of Washington, 124 Iowa 382, 100 N.W. 80; Polmatier v. Newbury, 231 Mass. 307, 120 N.E. 850; Stewart v. Cushing, 204 Mass. 154, 90 N.E. 545; 27 R. C. L. 194, sec. 39.
The admission of evidence as to the rules, usages and customs, adopted by defendant, regulating the parking of its motor truck, would naturally impress the jury with the idea that it was proper for them to consider it in determining the issues of fact. Its effect could not be otherwise than prejudicial to plaintiff.
It is alleged that the charge to the jury was erroneous in many respects. We shall not comment on each instruction, but shall call attention to such parts of the charge as we think were prejudicially erroneous.
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