Lieb v. Omaha & Council Bluffs Street Railway Company
| Decision Date | 31 December 1929 |
| Docket Number | 26999 |
| Citation | 228 N.W. 364,119 Neb. 222 |
| Parties | ESTHER LIEB, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES E FOSTER, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
In a personal injury action involving the issues of negligence and contributory negligence, and where, from the evidence respecting such issues, different minds may reasonably draw different conclusions, the question is one of fact for the jury.
In a personal injury action, grounded upon the negligence of the defendant, and where contributory negligence is alleged as a defense, and there is evidence tending to prove the charge of negligence and contributory negligence, it is incumbent upon the trial court to give an instruction stating the comparative negligence rule, as provided by section 8834 Comp. St. 1922.
In an action by a passenger against a street railway company for personal injuries caused by starting, without warning, the street car while plaintiff was either in the act of alighting or about to alight therefrom, it is error for the trial court to refuse an instruction informing the jury that it was the duty of defendant, after stopping the car for passengers to alight, to wait a sufficient length of time, before putting the car in motion, to permit passengers, in the exercise of reasonable diligence, to alight in safety.
In an action for personal injuries, where plaintiff, a passenger, in her petition charged that, while in the exercise of due care on her part, she was on the rear platform steps of the street car, in the act of alighting therefrom, and that the agents and employees of said defendant negligently, wrongfully, and without due notice to plaintiff, caused said street car to be suddenly started forward, such allegation is sufficiently broad to cover the question as to whether the car was stopped a sufficient length of time to permit plaintiff to alight in safety.
In a personal injury action for damages, by a passenger of a street railway, grounded on the alleged negligence of the defendant in starting its street car, without warning, while she was upon the rear platform in the act of alighting therefrom, and the evidence tends to support such charge, it is error to instruct the jury that defendant does not owe a duty to warn such passenger that the car is about to be started.
Appeal from District Court, Douglas County; Foster, Judge.
Action by Esther Lieb against the Omaha & Council Bluffs Street Railway Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded.
Waldron, Silverman & Newkirk, for appellant.
Edward J. Shoemaker, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ., and DINEEN, District Judge.
This is a personal injury action in which defendant had the verdict and judgment, and plaintiff has appealed.
It was alleged in the petition that plaintiff was a passenger in one of defendant's street cars; that she signaled her intention to alight at the next stopping place; that the car stopped, and while she was in the act of alighting therefrom it was negligently and suddenly started by the motorman, and she was thereby thrown to the ground and sustained serious injuries. Defendant answered, denying any negligence, and alleged that at the time of the accident plaintiff attempted to leave the car after it was in motion, and that the accident and alleged injuries were due solely and entirely to her contributory negligence. In her reply plaintiff denied contributory negligence.
From the record it appears that plaintiff, her daughter, and sister-in-law were passengers on one of defendant's street cars in Omaha, and that as it was approaching the intersection of Commercial avenue and Boyd street she signaled to the conductor her intention to alight; that the car stopped and the three started to alight; that the daughter was first and alighted in safety; that the plaintiff was second, and while in the act of stepping from the street car it was put in motion, she was thrown to the pavement and sustained injuries, and that no notice was given by the motorman of his intention to start the car at the time. These facts appear without dispute. It also appears that at the street intersection, above mentioned, there is a steam railway, and that the rules of the defendant require the conductor to go forward upon the tracks thereof, to see that there are no approaching trains, and then to signal to the motorman to proceed. The evidence of defendant tends to show that the conductor, after the car had stopped and some passengers had alighted, proceeded ahead of the car to the railway crossing and signaled to the motorman to proceed; that he did not see any passengers alighting, or attempting to alight, from the car at the time he signaled to the motorman, but that the car had proceeded but a few feet when he observed a passenger, in an attempt to alight, falling to the pavement, and that the car was immediately stopped. The motorman testified that after receiving the signal from the conductor to proceed he looked to the rear of the car and saw no passengers on the platform or attempting to alight. The testimony of a passenger, a witness for defendant, tends to show that plaintiff had gone to the rear platform for the purpose of alighting from the car at the time it was started.
The errors assigned are that the verdict is contrary to law and the evidence, and not sustained by sufficient evidence, and in the giving and refusing of instructions.
With respect to the sufficiency of the evidence, it appears that there was evidence on behalf of defendant tending to prove that plaintiff had ample opportunity to alight from the car while it was standing, and that she attempted to alight after the car had started. The rule applicable is that, where different minds may reasonably draw different conclusions as to the negligence and contributory negligence from the facts proved, then the question is one of fact for the jury and not one of law for the court. Whether plaintiff was guilty of such contributory negligence as would affect her right to recover was a question of fact to be determined by the jury under proper instructions.
The pleadings and evidence raised the questions of defendant's negligence and plaintiff's contributory negligence. Section 8834, Comp. St. 1222, provides:
"In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury."
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Lieb v. Omaha & C. B. St. Ry. Co.
... ... St. 1922.In an action by a passenger against a street railway company for personal injuries caused by starting, ... , Judge.Action by Esther Lieb against the Omaha & Council Bluffs Street Railway Company. Judgment for defendant, and ... ...