Lady v. Douglass

• Decision Date: 31 December 1920
• Docket Number: 20799
• Citation: 181 N.W. 173,105 Neb. 489
• Parties: VAN B. LADY, ADMINISTRATOR, APPELLANT, v. GEORGE W. DOUGLASS, APPELLEE
• Court: Nebraska Supreme Court

181 N.W. 173

105 Neb. 489

VAN B. LADY, ADMINISTRATOR, APPELLANT, v. GEORGE W. DOUGLASS, APPELLEE

No. 20799

Supreme Court of Nebraska

December 31, 1920

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

AFFIRMED.

T. W Blackburn, for appellant.

H. H Baldrige, contra.

OPINION

DEAN, J.

Mrs. Catherine Zweifel, 69 years of age, was struck by an automobile driven by the defendant in Omaha and from the resulting injuries she died within a few hours. Van B. Lady, administrator of her estate, sued to recover damages alleged to have been sustained by the next of kin on account of her death. The jury returned a verdict for defendant, the suit was dismissed, and plaintiff appealed. On appeal the case was heard by the supreme court commission and on its recommendation the judgment was reversed. Subsequently, on defendant's application, a rehearing was allowed and the case has been reargued and submitted to the court.

Mr. C. M. Buck is a postal employee, and he and his wife were the only eye-witnesses called by plaintiff. Mr. Buck testified that they were out walking on the Sunday evening of the accident; that he saw Mrs. Zweifel just before the accident about two blocks away. He further testified: "Q. Did she walk these two blocks as rapidly as you did? A. She must have, about as rapidly as we did. Q. And you were going pretty fast? A. We were going in a hurry to get home on account of the rain; yes, sir." In his testimony he said in detail that Mrs. Zweifel continued her walk, and that she walked rapidly from the southeast corner of Twenty-fifth avenue and Fort street to the northeast corner of the intersection, and that she was looking straight ahead to the northwest and did not at any time look toward the east, the point from whence defendant's car was approaching; that the car was lighted, and there was no obstruction between it and Mrs. Zweifel as it approached from the east, nor was there any machine or wagon moving in that immediate vicinity; that she stepped in front of the car, and that as nearly as he could tell she was looking toward the northwest while the car at the time was moving toward the west; that when she was struck she was possibly 3 or 4 feet north of the north rail of the street car tracks; that in his opinion the car was going 10 or 12 miles an hour; that the scene of the accident was in a resident district about 4 1/2 miles away from the business center of the city. Mrs. Buck on the cross-examination corroborated the material testimony of her husband. She said that Mrs. Zweifel walked rapidly across the intersection and was looking toward the northwest and did not look toward the east from whence the automobile was approaching; that there was no obstruction between Mrs. Zweifel and the machine, nor did she see any other machines on the street nor any street cars passing at the time; that the night was dark and rainy; that she and her husband walked rapidly on account of the rain; that Mrs. Zweifel likewise walked at a rapid pace apparently to get out of the rain; that it seemed to her that she stepped immediately in front of the automobile.

Mr Ennis, his wife, and Mrs. Griffith, who were eyewitnesses, were called by defendant. Mr. Ennis testified that the defendant's car at the time was running at a rate of 8 to 10 miles an hour; that he was walking with his wife and Mrs. Griffith, and that while they were walking a block the car ran about a block and a half; that the car was lighted and the top was up; that a light rain was falling; that he, his wife, and Mrs. Griffith "were walking at a fair rate." Mrs. Ennis testified that she saw the defendant as he approached the scene of the accident, and that "he was not going much faster than we were walking, but we were walking as fast as we could walk on account of the mist, we wanted to get home on account of the rain;" that her party walked a little more than one-half block while defendant drove a block; that when Mrs Zweifel was picked up her clothing was not soiled, and that she did not look as though she had been dragged over...