McGahey v. Citizens Railway Company

• Decision Date: 09 January 1911
• Docket Number: 16,241
• Parties: THOMAS H. MCGAHEY, APPELLEE, v. CITIZENS RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

129 N.W. 293

88 Neb. 218

THOMAS H. MCGAHEY, APPELLEE, v. CITIZENS RAILWAY COMPANY, APPELLANT

No. 16,241

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Hainer & Smith and Clark & Allen, for appellant.

Halleck F. Rose and Wilmer B. Comstock, contra.

OPINION

ROOT, J.

The gist of this action is the defendant's alleged negligence in operating a street car so that the plaintiff was injured and his vehicle damaged while crossing the defendant's railway at the intersection of Seventeenth and N streets in the city of Lincoln. The plaintiff prevailed, and the defendant appeals.

The testimony is conflicting and parts of it are extravagant but, since the jury found for the plaintiff, it is our duty to consider the transaction in the light most favorable to him.

It appears that N and Seventeenth streets are each paved and 100 feet in width; that a sidewalk and parkway cover 20 feet of the space on each side of the streets, and the defendant maintains a double-track railway on N street, which runs east and west; that the surface of N street slopes slightly toward the east, and the gutters are seven-tenths of a foot lower than the crest of the street. It further appears that there are dwelling houses along the south side of N street westward from Seventeenth street, so situated that the porches are flush with the lot line, and there are seven shade trees between the curb and sidewalk on the south side of N street west of Seventeenth. The accident occurred about 8 o'clock in the forenoon of a still, clear day in September, while the plaintiff was driving northward on the east side of Seventeenth street riding upon an air compressor eight feet in height which weighed about 5,200 pounds and was painted a brilliant red. The plaintiff's vehicle had almost cleared the southernmost railway track when one of the defendant's cars moving eastward collided with a rear wheel of the air compressor, and as a result the vehicle was damaged and the plaintiff injured. The testimony discloses that the plaintiff, about the time his team crossed the footpath on the south side of N street, noticed the car in question, and calculated he could drive over the track before the car would cross Seventeenth street; that subsequently, as he urged his horses forward, he raised one hand as a warning. The motorman and conductor upon the car both testify to having noticed the signal, but the testimony is in hopeless conflict concerning the space then intervening between the car and the air compressor. The plaintiff says the distance was about 125 feet, the defendant's employees say about 45 feet. The jury would be justified in finding, from all of the evidence, that the motorman did not see the plaintiff until the latter raised his hand. One witness testifies that the car was well under control as it entered the intersection of said streets, but immediately thereafter the speed rapidly increased until the collision occurred, and that directly after the accident the motorman exclaimed that he "thought the old fool was going to get off of the track when he started up this second time." If the motorman did not notice so conspicuous an object as the plaintiff's vehicle until the car was almost upon the footpath on the west side of Seventeenth street, the jury might say he was not on the lookout for teams or pedestrians. If the car was 125 feet distant from the plaintiff when the motorman noticed the former's uplifted hand, and thereupon applied all of his power to the brakes upon the car, it must have been running at a terrific rate of speed or else the appliances were defective or ill-suited for controlling its movements. If, as the witness Skinner testifies, the car was well under control at the time it approached said intersection, but its speed was thereafter suddenly accelerated, there was gross disregard for the plaintiff's safety. The court therefore was justified in submitting the cause in a double aspect; that is to say, to permit the jury to find whether the defendant was negligent in failing to exercise reasonable care to control the speed of its car at the time of and shortly preceding the accident, or to find whether the motorman, after discovering the plaintiff's perilous situation, brought about possibly by his own negligence, failed to use ordinary care to avert the accident. Omaha Street R. Co. v. Mathiesen, 73 Neb. 820, 103 N.W. 666; Zelenka v. Union Stock Yards Co., 82 Neb. 511, 118 N.W. 103...