Leigh v. Omaha St. Ry. Co.

• Citation: 36 Neb. 131,54 N.W. 134
• Parties: LEIGH v. OMAHA ST. RY. CO.
• Decision Date: 17 January 1893
• Court: Nebraska Supreme Court

36 Neb. 131

54 N.W. 134

LEIGH

v.OMAHA ST. RY. CO.

Supreme Court of Nebraska.

Jan. 17, 1893.

Syllabus by the Court.

1. It is the duty of a master to furnish his servant with such appliances for his work as are suitable and may be used with safety, and, if the servant is injured by reason of defective appliances furnished by his master, the latter will be liable for damages, unless he can show that he has used due care in the selection of the same.

2. The driver of a street car propelled by horses was given a span of horses to propel the car, one of which was a broncho, and would kick when struck, which fact was known to the master, but of which the driver was not aware, and was not informed by the master. The car was under the care of a conductor, who permitted the same to be overcrowded, every available foot of space both in the car and on the platform being filled. On attempting to start the car the broncho refused to pull, whereupon the driver slapped it with the lines, when it kicked him in the abdomen, causing death in a few hours. Held, that there was sufficient testimony to submit the questions of fact to a jury.

Error to district court, Douglas county; Irvine, Judge.

Action by Lillie Leigh, administratrix of the estate of Elmer Leigh, against the Omaha Street Railway Company, to recover for the death of the intestate. There was a judgment of nonsuit, and plaintiff brings error. Reversed.Cowin & McHugh, for plaintiff in error.

John L. Webster and Breckenridge, Breckenridge & Crofoot, for defendant in error.

MAXWELL, C. J.

This is an action to recover for the death of Elmer Leigh, the husband of the plaintiff. The testimony tends to show that on the 5th of September, 1889, the county fair of Douglas county was in progress at North Omaha; that one of the means of transportation to the fair grounds was by way of the cable cars running north on Twentieth street to Lake street; that from that point to the fair grounds the defendant operated a stub line of road with street cars drawn by horses, the passengers being transferred to the horse cars from the cable; that Elmer Leigh was driver of one of the cars on the stub line; that he had been in the employ of the company about three weeks; that one of the horses he was furnished with was a broncho, which the company had owned for some four years; that this animal was gentle in the barn, but when hitched up and struck with a line or whip would kick; that Leigh had never driven the horse until that day, and, so far as appears, did not know of the horse's peculiarities or failings. There is testimony tending to show that this fault was known to the company. The testimony also tends to show that on the day named there was a conductor on the car to collect fares, and that the car was crowded, so that every available inch of space within the car and on the platforms was occupied by passengers; that the car stopped on the corner of Twentieth and Spencer streets, to take on another passenger, when the conductor gave the signal to start. This Leigh attempted to do, but the broncho refused to...