Lindgren v. Omaha St. Ry. Co.
| Decision Date | 19 April 1905 |
| Citation | 103 N.W. 307,73 Neb. 628 |
| Parties | LINDGREN v. OMAHA ST. RY. CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined, and held to show no actionable negligence on the part of defendant.
2. Omaha Street Railway Co. v. Larson (Neb.) 97 N. W. 824, examined, approved, and distinguished.
3. Action of the trial court in excluding evidence examined, and held not reversible error.
Commissioners' Opinion. Error to District Court, Douglas County; Redick, Judge.
Action by Victor G. Lindgren against the Omaha Street Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.Brome & Burnett and A. G. Ellick, for plaintiff in error.
John L. Webster, for defendant in error.
This was a suit for injuries to person and property, alleged to have been occasioned by the impact of a street car operated by the Omaha Street Railway Company with plaintiff's buggy on the 28th day of April, 1902. The facts underlying the controversy are: That on the evening of the 28th day of April, 1902, the plaintiff was driving a top buggy, drawn by a single horse, on his way home from his place of business. That he drove from the west onto Twenty-Fourth street, which is a street running north and south through the city of Omaha. On this street are two lines of street railway track, owned and operated by the defendant company. The east line of this track is used by cars going north, and the west line of the track by the cars going south. When plaintiff drove on Twenty-Fourth street he crossed both lines of the street railway track and looked for cars, as he testifies, but saw none approaching. He then drove along this street parallel to the east line of the railway track for about two blocks, when he came to two or three teams that were hitched or standing between the east line of the track and the curb of the street. When he reached these teams he turned down onto the east line of the street railway track, and, as he did so, he looked for a car, but saw none. He drove for about two or three hundred feet along the line of the street railway track, when he says he looked back and saw a car approaching from the south within about 10 feet of him. He then turned his horse from the track, and in stepping off the track the horse slipped and fell, and the car, almost instantaneously with the fall of the horse, struck the buggy in which plaintiff was driving, and inflicted a severe injury upon him, and also broke and injured the buggy. Plaintiff did not observe the rate of speed of the car, and was knocked senseless by the impact, and could not tell anything as to how far the car ran after the accident. Another witness for plaintiff, named Jacobs, was standing by his team near to the point of the collision. He testifies in substance that he saw the car approaching; when about 20 feet from plaintiff, saw plaintiff turn his horse off the street railway track, saw the horse fall and stumble off the track, and saw the car strike the buggy in which plaintiff was riding, and then went immediately to the plaintiff's assistance. He was uncertain as to how far the car ran after the collision, and did not remember to have heard the bell rung or the gong sounded when the car approached plaintiff's buggy. There was an effort to prove by this witness the speed of the car, but this evidence was excluded, and error predicated on this ruling of the court will be subsequently discussed. Another witness, named Downs, who stood in front of his barber shop near to the point of the injury, testified that he saw plaintiff driving on the track of the defendant railway company, and saw the car when it approached to about 20 feet of plaintiff's buggy, saw plaintiff turn his horse from the track, and saw the horse slip and fall, and the car in about a minute afterward, or in a very short time, strike the buggy, and saw plaintiff thrown from the buggy by the impact of the car. He testifies that the car ran about 20 or 30 feet after the impact before it was stopped. This was all the evidence that was offered by plaintiff on the cause of the injury, other testimony being medical evidence as to the extent and nature of the injury sustained. At the close of plaintiff's testimony the court directed a verdict for the defendant, and plaintiff brings error to this court, alleging error in the action of the trial court in directing a verdict, and in excluding the testimony of witness Jacobs as to the speed of the car at the time of the injury. We will consider these assignments in the order in which they are presented in plaintiff's brief.
1. Does the evidence introduced by plaintiff show any actionable negligence on the part of the defendant directly causing or contributing to the injury complained of? The negligence alleged in the petition is, in short, that defendant was running its car at an unreasonable rate of speed, that it neglected to sound an alarm by bell or gong when approaching plaintiff's buggy, and that it neglected to use due diligence, care, and caution to avoid the injury after discovering plaintiff's perilous position. In the first place, there is no testimony in the record that defendant failed to give a warning by gong or bell when approaching plaintiff's...
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