Lincoln St. Ry. Co. v. McClellan

• Decision Date: 21 April 1898
• Parties: LINCOLN ST. RY. CO. v. MCCLELLAN.
• Court: Nebraska Supreme Court

54 Neb. 672

74 N.W. 1074

LINCOLN ST. RY. CO.

v.MCCLELLAN.

Supreme Court of Nebraska.

April 21, 1898.

Syllabus by the Court.

1. One cannot recover for an injury received while a passenger on a street railway if the accident from which the injury resulted was due in part to his own want of ordinary care.

2. And in an action to recover damages in such case, an instruction which informs the jury that, the injury being shown, the carrier, to escape liability, must prove that the passenger was guilty of gross contributory negligence, is erroneous.

3. Street railways are common carriers of passengers, and as such are required to exercise the utmost skill, diligence, and foresight, consistent with the business in which they are engaged, for the safety of their patrons; and they are liable for the slightest negligence.

4. In an action for damages for an injury received while being transported by a common carrier, the injury being shown, the burden of proof is upon the carrier to show that it was in no wise at fault.

5. Section 3, c. 72, Comp. St. 1897, providing that “every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured,” etc., has no application to street railways.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Mary J. McClellan against the Lincoln Street-Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.William G. Clark, for plaintiff in error.

Clark & Allen, for defendant in error.

SULLIVAN, J.

The plaintiff, Mary J. McClellan, was injured while a passenger on one of the cars of the defendant, the Lincoln Street-Railway Company, on June 21, 1892. Claiming her injury was caused by the negligence of defendant's servants, she brought this action in the district court of Lancaster county, and recovered a verdict and judgment for $1,125. The answer of the defendant was a general denial, coupled with an allegation of contributory negligence. The court instructed the jury as follows: “(3) When it at once appears from the evidence that the plaintiff was injured while a passenger upon defendant's street car, then the burden is upon the defendant to show by a preponderance of the evidence that such injury was not caused by any negligence upon its part, and that plaintiff herself contributed to the injury by her own gross negligence, unless it should appear in establishing plaintiff's own case that the injury was caused by causes beyond the control of defendant, or contributed to by plaintiff's own gross negligence.” “(6) It was the duty of the plaintiff, when entering the car of the defendant, to exercise reasonable and ordinary care in discovering the opening in the floor of the car, and avoiding the same; and, if you find from the evidence that plaintiff failed to do so, then it is a proper matter for you to consider in determining whether or not the plaintiff was guilty of gross negligence that contributed to the accident complained of. And if you find from the evidence that plaintiff, by her own gross, careless, and negligent acts, contributed to the injury complained of, then she cannot recover, even though you should conclude from the evidence that the plaintiff was negligent as charged.” By these instructions the jury were told that, if the accident was proven, the defendant would be liable, unless it established by a preponderance of the evidence that it was not itself at fault, and that the plaintiff's own gross negligence contributed to her injury. It is settled by the decisions of this court that street-railway companies are common carriers of passengers. Spellman v. Transit Co., 36 Neb. 890, 55 N. W. 270;Pray v. Railway Co., 44 Neb. 167, 62 N. W. 447; Railway Co. v. Godola, 50 Neb. 906, 70 N. W. 491. As such they are bound to exercise for the safety of their patrons more than ordinary care. They are required to exercise the utmost skill, diligence, and foresight consistent with the business in which they are engaged, and are liable for the slightest negligence. This is the liability imposed by the common law on all carriers of passengers for hire. Spellman v. Transit Co., supra; Railway Co. v. Higgs, 38 Kan. 375, 16 Pac. 667; Meier v. Railroad Co., 64 Pa. St. 225; Railroad Co. v. Horst, 93 U. S. 291. The law presumes that one injured while being transported by a common carrier was injured in consequence of the latter's negligence, and to escape liability it must show that it has discharged the full measure of its legal duty, and was in no wise to blame for the accident. It need not, however, under the rules of the common law, acquit itself of all blame, and, in addition thereto, convict the plaintiff of gross contributory negligence. This counsel for plaintiff seem to concede, but they contend that the provisions of section 3, c. 72, Comp. St. 1897, are applicable to street-railway companies, and therefore the rule stated in the foregoing instructions is correct. The section referred to is as follows: “Every railroad...