Lustgarten v. Harris
| Decision Date | 02 March 1932 |
| Docket Number | 28146 |
| Citation | 241 N.W. 114,122 Neb. 663 |
| Parties | POLA LUSTGARTEN, APPELLEE, v. FRANK HARRIS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In an action by a pedestrian against the owner of an automobile for personal injuries sustained when she was struck by such automobile as she attempted to cross the street in the middle of the block, where it appears that the automobile was more than half a block away when she first started across the street, and that she looked a second time, and no other automobiles were in sight, and where the driver of such automobile saw such pedestrian and, by the exercise of due care in the control thereof, could have stopped in time to avoid striking her, held, that the question of the comparative negligence of the parties is one for the jury.
2. " Where different minds may reasonably draw diverse conclusions from the same facts as to whether or not they establish negligence or contributory negligence, those issues must be submitted to the jury." Perrine v. Union Stock Yards Co., 81 Neb. 790, 116 N.W. 776.
3. Evidence examined, discussed in the opinion, and held that the verdict is supported thereby.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Pola Lustgarten against Frank Harris and another. Judgment for the plaintiff, and the defendants appeal.
Affirmed.
Kennedy, Holland & De Lacy, for appellants.
Brome, Thomas & McGuire and John T. Marcell, contra.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ.
Mrs. Pola Lustgarten began this action in the district court for Douglas county to recover damages for personal injuries sustained by her when she was struck by an automobile owned by the O'Brien Drug Company and at the time driven by Frank Harris, an employee of the company. Both the drug company and Harris are named as defendants herein. The jury returned a verdict for $ 5,000 for plaintiff and the defendants have appealed.
The plaintiff, who has driven an automobile for 18 years, parked her car on the south side of Farnam street between Thirty-eighth street and Thirty-eighth avenue. The accident in question here occurred in Omaha, April 4, 1930, at about 11:30 in the forenoon. The plaintiff testified that she left her car, intending to go directly across the street to a grocery store in the middle of the block on the north side of the street. She testified that she saw the defendant's car approaching when more than half a block away, and when she first started across the street, and no other cars were then approaching from the opposite direction. She looked a second time and the car was then only about a half block away. From her evidence it appears that the plaintiff concluded she had ample time in which to cross the street, but when she was only four or five steps from the sidewalk, and while she was crossing the second street car tracks, she was struck by the defendant's car.
Defendant Harris testified that he was going west on Farnam street at the time, and that he slowed down to permit an approaching truck to pass in front of him on Thirty-eighth street, and that he was driving in second gear and at not more than 15 or 16 miles an hour at the time. He also testified that when he first saw the plaintiff she was standing in the middle of the street and he thought she was waiting for him to proceed. From his testimony it appears that he slowed down several times, and that the plaintiff stopped, but that, finally, she started running directly in front of his car just as he stepped on the accelerator. The plaintiff was struck by the bumper of the car and thrown not more than two feet before the car was stopped. On the cross-examination, it was developed that at no time was the car brought to a complete stop before the accident. The defendant testified that he was still 40 feet from the plaintiff when he sounded the horn the second time and, at that time, he was driving at the rate of only 8 miles an hour. And he testified that he was only 12 feet from the plaintiff when she stopped the second time.
One witness testified that a skid mark, 68 or 70 feet in length was perceptible on the pavement after the accident, and that the mark was evidently made by the left rear wheel of the car. And another testified that he observed the plaintiff as she left her car and started across the street, but he did not see the car strike her as his vision was obstructed at the time by the wall of the store in which he was employed. He testified that his attention was called to the car as it moved swiftly by and that shortly thereafter he heard the squeaking of the car brakes. He also testified that a long skid mark was made on the pavement and that the car appeared to him to have been driven at about 35 miles an hour when he first noticed it and that at no time did he hear a horn sounded. Another witness testified that his attention was attracted to the defendant's car from the fact that it was being driven a "little bit faster" than the average car. To substantially the same effect is the evidence of another witness who heard the squeak of the tires on the payment as the brakes were applied, but he heard no horn sounded. On this feature, however, evidence...
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