McKennan v. Omaha & C. B. St. R. Co., No. 17698.

CourtSupreme Court of Nebraska
Writing for the CourtLETTON
Citation97 Neb. 281,149 N.W. 826
PartiesMCKENNAN v. OMAHA & C. B. ST. R. CO.
Docket NumberNo. 17698.
Decision Date04 December 1914

97 Neb. 281
149 N.W. 826

MCKENNAN
v.
OMAHA & C. B. ST. R. CO.

No. 17698.

Supreme Court of Nebraska.

Dec. 4, 1914.



Syllabus by the Court.

The general public has an equal right with a street car company upon a public street of a city, but has not at all times the same right upon the track of the street car company. The public has a complete right to cross or drive upon the street car tracks, but not so as to hinder or interfere with the cars operated thereon.

The motorman of a street car is not necessarily obliged to stop his car when he sees a man driving in a vehicle along the line of railway ahead of the car; but he may continue to run the car in a proper manner until it appears that the driver is in danger and is unaware or heedless of his danger. It is then his duty to use all reasonable care and diligence to avoid a collision. Seeing a man driving along the track, the motorman may assume that he will turn aside and out of the way of his car, but he cannot rest on the assumption so long as to allow his car to reach a point where it will be impossible for him to control his car or give warning in time to prevent injury to the man or vehicle.

In such a case the motorman in charge of the car should use the care and diligence which an ordinarily prudent person would use under the circumstances.

It is equally the duty of any person driving upon or across a street car track not to unnecessarily hinder, delay, or impede the operation of cars thereon at the proper rate of speed at that time and place, and if he negligently does so, and by reason of such negligent act he is injured, he cannot recover unless those in charge of the street car failed to exercise ordinary care to avoid a collision after they knew, or in the exercise of ordinary care should have known, his dangerous situation. Omaha Street R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824.

Opinions of witnesses derived from observation are admissible in evidence when from the nature of the subject under investigation better evidence cannot be obtained; and this principle is applicable to indications of pain and suffering, even though observed some time after an injury.

If testimony not properly admissible is brought out by a proper question, and no motion to strike it out is made at the trial, the error is not subject to review.

Instructions, the substance of which are set forth in the opinion, held to be inconsistent with the main issue as stated by the court, and to be prejudicial to defendant.

Exhibitions to the jury of scars of bodily injuries should not be permitted unless they furnish evidence material to the issues to be determined.

A party, after having requested the giving of an instruction, cannot afterwards complain that it was erroneous.


On motion for rehearing. Former opinion modified, but conclusion adhered to and motion overruled.

For former opinion, see 95 Neb. 643, 146 N. W. 1014.

Hamer, J., dissenting in part and concurring in conclusion.

[149 N.W. 826]

LETTON, J.

[1][2][3][4] In the former opinion in this case (McKennan v. Omaha & C. B. St. R. Co., 95 Neb. 643, 146 N. W. 1014), it was held that, there being a conflict in the evidence with relation to the circumstances surrounding the injury and also with reference to the extent of plaintiff's injuries, these questions were proper to be submitted to the jury. It was also held that the first paragraph of instruction No. 7 was incorrect as applied to the facts in this case. The language of this part of the instruction was not applicable, since the statement “that teamsters have the legal right to cross the street at any point thereon” had no relevancy to the issues. It was also said that this instruction is correct as to the rights of the street car company and plaintiff at intersection or cross streets, but that it failed to properly distinguish their respective rights

[149 N.W. 827]

at other points in the street. We think the latter statement and the further criticisms of the instruction should be withdrawn.

In Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531, this court said:

“Street railways are constructed and operated on public highways under grants of that right by municipal corporations. The grant is of a privilege to occupy and use these streets in conjunction with, and not to the exclusion of, the general public.”

In Olney v. Omaha & C. B. St. R. Co., 78 Neb. 767, 111 N. W. 784, it is said:

“The right to use the streets of a city by the driver of a horse and the manager of a street car company are equal, and each must use it with reasonable regard for the safety and convenience of the other.”

In Stewart v. Omaha & C. B. St. R. Co., 88 Neb. 209, 129 N. W. 440, Ann. Cas. 1912B, 861, it is said:

“Whatever the rule in some states may be with respect to the rights of pedestrians and street cars upon the streets of a city, the law in this state is settled that neither the street car nor the pedestrian has any priority or privileged right over the other; that an electric street railway company and an ordinary traveler upon the street are required to observe an equal degree of care to prevent accidents, and that neither has a right of way superior to that of the other. Omaha St. R. Co. v. Cameron, 43 Neb. 297 [61 N. W. 606];Mathieson v. Omaha St. R. Co., 3 Neb. (Unof.) 747 [97 N. W. 243];Omaha St. R. Co. v. Mathieson, 73 Neb. 820 [103 N. W. 666];Olney v. Omaha & C. B. St. R. Co., 78 Neb. 767 [111 N. W. 784].”

Under ordinary circumstances, one who negligently attempts to cross a street railway track or to drive upon it in front of an approaching car cannot recover for injuries caused by a collision therewith, unless those in charge of the car fail to exercise ordinary care to prevent the accident after knowledge of his probable danger. Omaha St. R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824;McLean v. Omaha & C. B. R. & B. Co., 72 Neb. 447, 453, 100 N. W. 935, 103 N. W. 285;Lindgren v. Omaha St. R. Co., 73 Neb. 628, 103 N. W. 307;Chunn v. City & S. R. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219; 2 Nellis, Street Railways, § 462.

There was no intention to change the established rule in this state by the opinion in Harris v. Lincoln Traction Co., 78 Neb. 681, 111 N. W. 580, in which case it was not quite accurately said that in such a case the defendant would not be liable unless those in charge of the car “willfully or wantonly” produce the collision. The words “willfully” and “wantonly” being used disjunctively, the word “wantonly” evidently was not meant to express the idea of intentionally or willfully but that of “carelessly” or “negligently.” Lafayette & I. R. Co. v. Huffman, 28 Ind. 287, 92 Am. Dec. 318;Cleveland, C., C. & St. L. R. Co. v. Tartt, 64 Fed. 823, 12 C. C. A. 618. It may be noted that this is the thought expressed in the instructions tendered by defendant.

A good statement of the proper rule is found in Fujise v. Los Angeles R. Co., 12 Cal. App. 207, 216, 107 Pac. 317, 321:

“The sum of the adjudicated cases bearing upon the relative rights of street cars and citizens traveling in vehicles drawn by horses or other animals is that both have a right to use the street, but neither has the exclusive right. The motorman of a street car is not necessarily obliged to stop his car when he sees a man driving in a vehicle along the line of a railway ahead of the car, but he may continue to run the car in a proper manner until he is conscious of the fact that the driver is unaware or heedless of his danger. When he is thus conscious, it is his duty to use all reasonable care and diligence to avoid running the car into the vehicle. Seeing a man driving along the track, the motorman may assume that he will turn aside and out of the way of the car, but he cannot rest on the assumption so long as to allow his car to reach a point where it will be impossible for him to control his car or give warning in time to prevent injury to the man or vehicle.”

See, also, Callahan v. Boston Elevated R. Co., 205 Mass. 422, 91 N. E. 388, 18 Ann. Cas. 510;Indianapolis Traction & Terminal Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942;Acton v. Fargo & M. Street R. Co., 20 N. D. 434, 129 N. W. 225;Greene v. Louisville R. Co., 119 Ky. 862, 84 S. W. 1154, 7 Ann. Cas. 1126.

In the former opinion it was held that the refusal to give instructions Nos. 15 and 16 requested by defendant was erroneous. It appears, however, that instruction No. 15 was embodied in the charge of the court upon its own motion, though marked as refused when tendered by defendant. Instruction No. 16 was refused for the reason that it was not tendered to the court within a reasonable time. We considered this reason not adequate. Upon a critical examination of the language of the instruction we are of the opinion that the court properly refused to give it. This instruction makes the standard of care the exercise of the best judgment of the individual motorman. The rule is laid down by the Supreme Court of the United States in The Germanic, 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610, as follows:

“But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it ‘should be coextensive with the judgment of each individual’ was exploded, if it needed exploding, by Chief Justice Tindal in Vaughan v. Menlove, 3 Bing. N. C. (Eng.) *468-*475.”

In the case referred to, Chief Justice Tindal said:

“Instead, therefore, of saying...

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9 practice notes
  • Burton v. Lincoln Traction Co., No. 21701.
    • United States
    • Supreme Court of Nebraska
    • July 7, 1921
    ...liable for such injury.” Omaha Street R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824. See, also, McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 149 N. W. 826. This was the rule of law even when any act of contributory negligence of the plaintiff would bar recovery. Harris v. Lincoln......
  • Reed v. Tacoma Ry. & Power Co., 16691.
    • United States
    • United States State Supreme Court of Washington
    • November 16, 1921
    ...doctrine announced: Wolff Manufacturing Co. v. Wilson, 152 Ill. 9, 38 N.E. 694, 26 L. R. A. 229; McKennan v. Omaha & C. B. Ry. Co., 97 Neb. 281, 149 N.W. 826; 20 R. C. L. p. 26; 2 Thompson on Negligence, § 1669; 29 Cyc. 521; Labatt on Master & Servant (2d Ed.) [201 P. 785] p. 2413. ......
  • Fitzgerald v. Omaha & C. B. St. Ry. Co., No. 17969.
    • United States
    • Supreme Court of Nebraska
    • March 13, 1915
    ...the track at right angles, cannot maintain his speed until a collision is inevitable. McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 149 N. W. 826;Kennedy v. Third Avenue R. Co., 31 App. Div. 30, 52 N. Y. Supp. 551. In Stewart v. Omaha & C. B. Street R. Co., 88 Neb. 209, 129 ......
  • Kubicek v. Slezak, No. 27080.
    • United States
    • Supreme Court of Nebraska
    • April 3, 1930
    ...observed by them tending to show the nature and extent of the injury.” [230 N.W. 249] In McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 285, 149 N. W. 826, 828, the court said: “The first point urged is that the court erred in permitting nonexpert witnesses to testify to their co......
  • Request a trial to view additional results
9 cases
  • Burton v. Lincoln Traction Co., No. 21701.
    • United States
    • Supreme Court of Nebraska
    • July 7, 1921
    ...liable for such injury.” Omaha Street R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824. See, also, McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 149 N. W. 826. This was the rule of law even when any act of contributory negligence of the plaintiff would bar recovery. Harris v. Lincoln......
  • Reed v. Tacoma Ry. & Power Co., 16691.
    • United States
    • United States State Supreme Court of Washington
    • November 16, 1921
    ...doctrine announced: Wolff Manufacturing Co. v. Wilson, 152 Ill. 9, 38 N.E. 694, 26 L. R. A. 229; McKennan v. Omaha & C. B. Ry. Co., 97 Neb. 281, 149 N.W. 826; 20 R. C. L. p. 26; 2 Thompson on Negligence, § 1669; 29 Cyc. 521; Labatt on Master & Servant (2d Ed.) [201 P. 785] p. 2413. ......
  • Fitzgerald v. Omaha & C. B. St. Ry. Co., No. 17969.
    • United States
    • Supreme Court of Nebraska
    • March 13, 1915
    ...the track at right angles, cannot maintain his speed until a collision is inevitable. McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 149 N. W. 826;Kennedy v. Third Avenue R. Co., 31 App. Div. 30, 52 N. Y. Supp. 551. In Stewart v. Omaha & C. B. Street R. Co., 88 Neb. 209, 129 ......
  • Kubicek v. Slezak, No. 27080.
    • United States
    • Supreme Court of Nebraska
    • April 3, 1930
    ...observed by them tending to show the nature and extent of the injury.” [230 N.W. 249] In McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281, 285, 149 N. W. 826, 828, the court said: “The first point urged is that the court erred in permitting nonexpert witnesses to testify to their co......
  • Request a trial to view additional results

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