Livingston v. Omaha & Council Bluffs Street Railway Company
| Decision Date | 26 December 1919 |
| Docket Number | 20489 |
| Citation | 175 N.W. 662,104 Neb. 118 |
| Parties | LILLIAN LIVINGSTON, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
Stout Rose & Wells and M. O. Cunningham, for appellant.
John L Webster, Herbert J. Connell and William M. Burton, contra.
Plaintiff sued to recover $ 50,650 for personal injuries alleged to have been sustained because of defendant's negligent control of a street car as she was about to alight. Defendant recovered verdict and judgment, and plaintiff appealed.
Respecting the facts immediately attending the accident, plaintiff testified in substance that she arrived at her destination in Council Bluffs about midnight; that just before alighting and while standing in the exit aisle the car suddenly lurched and she was thereby thrown so that her head came in contact with one of the metal hand-rails with such violence that she was rendered unconscious. Della Gilday on the part of plaintiff testified that the accident happened in front of her home, and that she was standing in her front doorway when the car came up; that from there she could see that "Miss Livingston started for the back end of the car, and the conductor was on the inside, with the door closed, and Miss Lillian walked out to the end of the car and went out and closed the door, and in the rough stop of the car she bumped against the railing and was pushed off the car;" that plaintiff fell in a sitting posture and was lying unconscious a little east and away from a plank crosswalk at the intersection when witness reached the car. A photograph in evidence shows that the plank walk is of usual width. The evidence is undisputed that, about "four or five steps from the car track," there is a hole in the walk large enough to permit a person's foot to go through as Miss Gilday testified. It is defendant's contention that plaintiff alighted safely, and that she stepped in this hole and fell, and that such fall was the proximate cause of her injury.
Thse witnesses were called by defendant: Paul Lowry, a passenger, testified that the car was standing still when plaintiff alighted; that there was neither a "lurch" nor a "jerk;" that he saw her throw up her hands and fall directly over the hole in the walk; that when the car stopped the plank walk was directly opposite the back step. To substantially the same effect was the testimony of Ed. Lowry who was a passenger. He also testified that he saw plaintiff when she left her seat, and when next he saw her she was lying on the plank walk with one foot in the hole. Another passenger testified that the car stopped without any unusual movement. The motorman testified that the car stopped without either a "lurch" or a "jerk;" that, hearing no starting signal, he looked into the mirror that reflects the back end of the car, and upon discovering that the conductor was on the crosswalk, he went back and saw plaintiff "lying over the hole in the crosswalk" about six feet from the car steps. The conductor testified that as the car stopped plaintiff followed him from her seat in the car to the rear platform and alighted on the walk; that after taking two or three steps "she seemed to kind of lose her balance and throw up her hands and she fell;" that he immediately went to her relief and, raising her up, he found that her foot was in the hole in the walk.
Plaintiff argues that her testimony and that of Della Gilday "to the...
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