Lincoln Traction Company v. Heller
| Decision Date | 09 June 1904 |
| Docket Number | 13,549 |
| Parties | LINCOLN TRACTION COMPANY v. LUCY A. HELLER, ADMINISTRATRIX. [*] |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.
AFFIRMED.
Clark & Allen, for plaintiff in error.
Burr & Spencer, contra.
AMES, C., not sitting.
Plaintiff, as administratrix of the estate of Thomas C. Heller, sued the defendant, the Lincoln Traction Company, alleging that through the negligence of the defendant, Thomas C. Heller was killed while being transported as a passenger on the defendant's car. The negligence charged in plaintiff's petition, briefly summarized, is, that there was no conductor on the car at the time deceased was injured; that the car was overheated; that the folding gate on the left side of the front platform was open; that the car was not provided with proper guards and fenders, was not a car of the latest pattern and was being operated in violation of the provisions of a city ordinance of Lincoln; that plaintiff's intestate while riding on the car became sick with vertigo and in attempting to leave the car fell from the front platform and was killed because of the dangerous and improper construction of the car. Defendant's answer was in substance a general denial and plea of contributory negligence. On issues thus joined there was a trial to the jury and verdict for plaintiff for $ 700; judgment on the verdict, and defendant brings error to this court.
The first question called to our attention in the brief of defendant company is, that the evidence is not sufficient to sustain the judgment. This contention has necessitated a careful review of a lengthy bill of exceptions, in which we find competent evidence introduced by plaintiff tending to show the following material facts bearing on the cause of the injury: About 6 o'clock on the evening of the accident, plaintiff's intestate entered defendant's street car at 11th and O streets, presumably intending to go to his residence in the southeastern portion of the city. The car was being operated by a motorman, without a conductor, and fares for the passage were deposited in a box at the end of the car, arranged for that purpose. After the deceased entered the car, he sat down for a few minutes, and when the car had gone near to C and 14th streets, he arose and rang the bell, presumably to have the car stopped for the purpose of permitting him to alight. Plaintiff's testimony tended to show the deceased had suffered from a sunstroke sometime before the injury, and that when overheated he was subject to dizziness and sometimes to vertigo. Two of the passengers on the car noticed that deceased appeared to walk unsteadily from the car when he approached the forward door. The motorman was checking the car in obedience to his signal, preparatory to stopping it at the 14th street crossing, when the accident occurred. When deceased stepped on the platform of the car, according to the evidence of those who saw the accident, he reeled and pitched forward to the ground. His clothing was caught by either the projecting hub or the oil can on the side of the car and he was drawn along the rail on the track for probably twenty feet, where he was picked up with his skull crushed and most, if not all, of his ribs broken. Plaintiff's evidence showed that the car operated by defendant company was an old horse car that had been reconstructed into an electric car, and that the car was what one of their witnesses called a "bob-tailed" car, that is, it was shorter and narrower than a modern car constructed for electric lines; that the wheels of the car projected even with and beyond the sides of the car. A platform had been built out at each end of the car when it had been reconstructed, causing the ends to project beyond the wheels under the car, which gave it an unsteady and rocking motion. It was in evidence, without dispute, that there were no fenders at the end of the car and no wire netting or other guards at the sides to protect the machinery underneath. Evidence was also introduced on the part of plaintiff, tending to show that the car was in no sense one of modern construction; but on the contrary, that it lacked many of the essential appliances for public safety which are in common use by electric street railways at the present day. An ordinance, regulating street railways of the city of Lincoln, duly enacted in 1898, was introduced, which provided as follows:
The allegations with reference to the car being overheated and with reference to defendant's negligence in not closing the gate on the front end of the car were taken from the jury by the trial court, and the cause was submitted on the question of defendant's negligence in the construction of the car, and its failure to provide a conductor as well as a motorman for its operation. In support of the allegation of the petition, as to the necessity of a conductor, evidence was introduced tending to show that the car passed along the streets on which there was a...
To continue reading
Request your trial