Mathieson v. Omaha St. Ry. Co.

• Decision Date: 03 December 1902
• Citation: 3 Neb. [Unof.] 743,92 N.W. 639
• Parties: MATHIESON v. OMAHA ST. RY. CO.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 743

92 N.W. 639

MATHIESON

v.OMAHA ST. RY. CO.

Supreme Court of Nebraska.

Dec. 3, 1902.

Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Baxter, Judge.

“Not to be officially reported.”

Action by Nels Mathieson against the Omaha Street Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.Weaver & Giller and Frank T. Ransom, for plaintiff in error.

John Lee Webster, for defendant in error.

AMES, C.

The defendant in error is a street railway company operating a line of electric street railroad traversing Leavenworth street in the city of Omaha. At about 11 o'clock of a certain night, the plaintiff, who was traveling along Twentieth street, which intersects Leavenworth street at right angles, approached the defendant's tracks with a team of horses hitched to a wagon in which he was riding. When the fore feet of the horses were at or on the outer rail of the track, the plaintiff discovered the headlight of an approaching car. He immediately whipped up his horses and drove them across the track, but the advancing car caught the hind wheels of his wagon, causing injuries on account of which this action was brought. If the defendant was negligent, it was because of its conduct in one or the other of two particulars, or by reason of concurring misconduct in both respects: First, because of failure of the motorman, in view of a threatened collision, to stop the car in due time before it came in contact with the wagon. There is no evidence in the record, or at least counsel have called our attention to none, indicative of such a failure, or, indeed, tending to prove that the defendant's servants knew of the presence of the team and wagon until the collision took place. Second, because the defendant was at the time operating its car at an excessive and negligent rate of speed. Upon this point there is also an absence of substantial evidence. The plaintiff testified, as already noted, that he did not observe the approaching car until his team were already upon the outer rail of the track, and that he then became much excited because of the threatening circumstances, and attempted to drive his team over the tracks. That in order to accomplish this object it was necessary to advance a distance of only 21 feet, and that he urged his horses to a speed of five or six miles an hour, and that before he could clear the way, and, as it seems to him, within two seconds after he first saw the headlight, the collision took place. He estimates, or attempts to do so, that the car, when he first saw it, was about 200 or 250 feet from the crossing, but he did...