Lincoln Rapid Transit Co. v. Nichols

• Decision Date: 29 June 1893
• Citation: 55 N.W. 872,37 Neb. 332
• Parties: LINCOLN RAPID TRANSIT CO. v. NICHOLS.
• Court: Nebraska Supreme Court

37 Neb. 332

55 N.W. 872

LINCOLN RAPID TRANSIT CO.

v.NICHOLS.

Supreme Court of Nebraska.

June 29, 1893.

Syllabus by the Court.

1. The granting of a franchise by the electors of a city to a corporation to build and operate a street railway in the streets of the city does not exempt the street-railway company from liability for injuries caused by its negligence, whether such negligence consists in the improper and careless management of its property, or in the character of the motive power employed in propelling its cars.

2. When one is placed by the negligence of another in a situation of peril, his attempt to escape danger, even by doing an act which is also dangerous, and from which injury results, is not contributory negligence such as will prevent him from recovering for an injury, if the attempt was one such as a person acting with ordinary prudence might, under the circumstances, make.

Commissioners' decision. Error to district court, Lancaster county; Tibbets, Judge.

Action by Joanna Nichols against the Lincoln Rapid Transit Company for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.Webster, Rose & Fisherdick, for plaintiff in error.

Adams & Scott and I. W. Lansing, for defendant in error.

RAGAN, C.

Mrs. Nichols sued the Lincoln Rapid Transit Company in the district court of Lancaster county, and in her petition alleged that the transit company was a corporation, and owned and operated a street railway in the city of Lincoln; that said street railway was operated by running a steam engine on and along its track, with coaches attached; that said engine is frightful to horses and teams coming in view of or passing near it, all of which was well known to the transit company; that there was a large and almost constant travel in wagons, buggies, carriages, and other vehicles drawn by horses on the streets used by the transit company, which was well known to it; that on the 5th day of July, 1890, and prior thereto, the transit company wrongfully and without right, and negligently and carelessly, ran said engine and cars along certain streets of said city of Lincoln, on which streets there was constant travel, as above stated; that on said date, while she was driving along Twelfth street in said city, in a buggy drawn by a gentle and quiet horse, the transit company wrongfully, negligently, and carelessly, and without warning, ran said engine to and within the immediate vicinity of the place where she was driving said horse; that he became suddenly frightened and unmanageable, and in said fright upset said buggy, and threw her upon the track and ground, and greatly injured her. The transit company pleaded to this petition three defenses: (1) A denial of negligence on its part; (2) a franchise from the electors of the city of Lincoln to operate its street railway; (3) contributory negligence on the part of Mrs. Nichols. There was a trial to a jury, with a verdict and judgment for Mrs. Nichols, and the transit company brings the case here, and assigns as errors the refusing of instructions requested by it, the giving of instructions objected to by it, and that the evidence does not sustain the verdict.

The instructions requested by the transit company and refused are as follows: “(4) If the jury find that the plaintiff had a fractious or skittish horse, or that the plaintiff was not a proper driver of the horse that was hitched to her vehicle, they will find for the defendant. (5) If the jury find that plaintiff, by her incompetence as a driver, or by carelessness in any way, contributed to the accident, the jury will find for the defendant. (6) If the jury find that horses generally are not frightened by the motor engine of the defendant, and that the machine was operated with ordinary and usual care at the time of the accident, they will find for the defendant. If the jury find that the plaintiff's horse, while yet a considerable distance from the motor, evinced alarm, and a tendency to be frightened, or become unmanageable, then it was the duty of the plaintiff to have turned about, and to have done all she could to have avoided the accident; and, if the jury find that the plaintiff did not so do, they will find for the defendant.”

The fourth was correctly refused. Whether Mrs. Nichols' horse was fractious or skittish, or whether she was a proper driver, were proper questions for the jury to consider in determining whether Mrs. Nichols was guilty of contributory negligence. This instruction leaves out entirely the element of negligence on the part of the transit company. If the negligence of the transit company was the proximate cause of Mrs. Nichols' injury, the fact of her horse being fractious or skittish, or she a poor driver, would not relieve the transit company from liability. Again, the trial judge, in the tenth paragraph of his charge to the jury, told them: “If you should find from the evidence that the horse driven by plaintiff was a fractious or skittish horse, or that the plaintiff was not a proper driver of said horse, then plaintiff would be guilty of negligence in driving the horse in the vicinity of the motor, and could not recover.” So it appears that the transit company has had the benefit of the instruction which it claims was erroneously refused. Certainly the transit company was not entitled to an instruction so broad as the one that was given.

As to instruction No. 5, asked by the transit company and refused, this was also substantiallygiven in paragraph No. 10 of the court's charge, and it was also covered by instruction No. 7 given to the jury at the request of the transit company. That instruction reads as follows: “If the jury find that plaintiff, after she found that her horse was alarmed at the motor, used her whip, or otherwise endeavored to force her horse forward towards the motor, and compelled him to approach the object that frightened him, such conduct is negligence on plaintiff's part, and they will find for the defendant.”

As to instruction No. 6, requested by the transit company and refused, it was substantially given by the trial judge in the latter part of paragraph No. 10 of his charge to the jury, as follows: “And further, if you should find from the evidence that plaintiff's horse, while yet a considerable distance from the motor, evinced alarm, and a tendency to be frightened, and threatened accident, then it was the duty of the plaintiff to turn about, if she could have done so, and to have done all she could...