McDonald v. Omaha & Council Bluffs Street Railway Company

• Citation: 257 N.W. 489,128 Neb. 17
• Decision Date: 23 November 1934
• Docket Number: 29054
• Parties: THERESA MCDONALD, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE
• Court: Supreme Court of Nebraska

257 N.W. 489

128 Neb. 17

THERESA MCDONALD, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE

No. 29054

Supreme Court of Nebraska

November 23, 1934

APPEAL from the district court for Douglas county: JOHN W. YEAGER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. When a pedestrian, approaching a street railway track, stops in a place of safety, and observes an on-coming street car a few feet away, still in motion, the act of such pedestrian in stepping directly in the path of such car, and being struck thereby, is the proximate cause of the accident.

2. If the evidence clearly shows that the plaintiff is guilty of more than slight negligence, which will defeat a recovery, it is proper to sustain a motion for an instructed verdict for the defendant.

3. Where the evidence discloses that the only permissible verdict was the one directed by the lower court, it will be affirmed.

Appeal from District Court, Douglas County; Yeager, Judge.

Action by Theresa McDonald against the Omaha & Council Bluffs Street Railway Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Reed, Ramacciotti & Robinson, for appellant.

Edward J. Shoemaker and Kennedy, Holland & DeLacy, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge.

OPINION

PAINE, J.

This is an action for personal injuries, which occurred when plaintiff was knocked down by a street car, the action being founded upon the alleged negligence of the motorman. At the close of plaintiff's testimony, the defendant's motion for an instructed verdict was argued for several hours, whereupon the court sustained the motion, and directed a verdict for the defendant.

The facts in the case may be briefly stated as follows: On March 18, 1932, the plaintiff and her friend, Miss Ruth Smith, walked west on Farnam street in Omaha to the corner of Park avenue, at which place Miss Smith intended to take a street car approaching from the east, that being a regular stopping point. The plaintiff left her friend and walked to the corner, and started to turn south, in front of the approaching street car, to cross the street. The car at that time was still in motion, and within perhaps seven feet of her. She took a couple of steps upon the track, and testifies that the car plunged forward and hit her, knocking her down, but stopping before it reached her feet, which were lying across the rail. There is no dispute in the evidence but what she suffered serious injuries. The humerus of her left arm was fractured, her left clavicle and scapula were torn loose from their attaching ligaments, her wrists were sprained, and she received numerous bruises, which necessitated her remaining in the hospital for some weeks and incurring a large bill for X-rays, doctor bills, and hospital care. Miss Smith testified that the car slid along fairly fast past the place where she was standing, and slowed up "very jerky."

In order to constitute actionable negligence, there must exist three essential elements: The duty, or obligation, which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure. A person who is upon a public street, of which a street railway company has been permitted to use a portion, does not become a trespasser by entering upon the track of the company on such street, since travelers have an equal right with the street railway company to use such street. A motorman must at all times so regulate the speed of his car as to have it under reasonable control, particularly when approaching a street crossing. Langenfeld v. Union P. R. Co., 85 Neb. 527, 123 N.W. 1086; Mercer v. Omaha & C. B. Street R. Co., 108 Neb. 532, 188 N.W. 296; Westover v. Hoover, 94 Neb. 596, 143 N.W. 946; 60 C. J. 384.

The third paragraph of the answer filed by the defendant in this case reads as follows: "For further answer, the defendant affirmatively alleges that the plaintiff did carelessly and negligently step into the path of the oncoming...