Mckennan v. Omaha & Council Bluffs Street Railway Co.

• Decision Date: 04 December 1914
• Docket Number: 17,698
• Citation: 149 N.W. 826,97 Neb. 281
• Parties: LAIN MCKENNAN, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

149 N.W. 826

97 Neb. 281

LAIN MCKENNAN, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 17,698

Supreme Court of Nebraska

December 4, 1914

Opinion on motion for rehearing of case reported in 95 Neb 643. Former opinion modified. Rehearing denied.

Motion for rehearing OVERRULED.

LETTON J. HAMER, J., dissenting in part and concurring in part.

OPINION

LETTON, J.

In the former opinion in this case (McKennan v. Omaha & C. B Street 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 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 We think the latter statement and the further criticisms of the instruction should be withdrawn.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. Street 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. Street R. Co., 88 Neb. 209, 129 N.W. 440, 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 Street R. Co. v. Cameron, 43 Neb. 297, 61 N.W. 606; Mathieson v. Omaha Street R. Co., 3 Neb. Unoff. 747, 97 N.W. 243; Omaha Street R. Co. v. Mathiesen, 73 Neb. 820, 103 N.W. 666; Olney v. Omaha & C. B. Street 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 Street 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; Lindgren v. Omaha Street R. Co., 73 Neb. 628, 103 N.W. 307; Chunn v. City & S. R. Co., 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; 2 Nellis, Street Railways, sec. 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 "wilfully or wantonly" produce the collision. The words "wilfully" and "wantonly" being used disjunctively, the word "wantonly" evidently was not meant to express the idea of intentionally or wilfully, but that of "carelessly" or "negligently." Lafayette & I. R. Co. v. Huffman, 28 Ind. 287; Cleveland, C., C. & St. L. R. Co. v. Tartt, 64 F. 823. 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 P. 317: "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, 18 Am. & Eng. Ann. Cas. 510, 91 N.E. 388; Indianapolis Traction & Terminal Co. v. Kidd, 167 Ind. 402, 5 Street R. Rep. 204, 79 N.E. 347; Acton v. Fargo & M. Street R. Co., 20 N.D. 434, 7 Street R. Rep. 499, 129 N.W. 225; Greene v. Louisville R. Co., 119 Ky. 862, 7 Am. & Eng. Ann. Cas. 1126, 84 S.W. 1154.

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, 49 L.Ed. 610, 25 S.Ct. 317, 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 motion 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 that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." The motorman was held to use that care and diligence which an ordinarily prudent man would use under the circumstances of the particular case. "The standard is universal, unless in those cases where the law imposes an absolute liability." 1 Shearman and Redfield, Law of Negligence (6th ed.) sec. 9b; Dailey v. Burlington & M. R. R. Co., 58 Neb. 396, 78 N.W. 722; Harrington v. Los Angeles R. Co., 140 Cal. 514, 74 P. 15; McIntyre v. Orner, 166 Ind. 57, 76 N.E. 750; Barnes v. Danville Street R. & L. Co., 235 Ill. 566, 85 N.E. 921.

A number of assignments of error were made by the appellant which were not considered in the former opinion. The first point urged is that the court erred in permitting nonexpert witnesses to testify to their conclusion or opinion that McKennan was sick and hurt and suffered pain. It is said that this invaded the province of the jury. We think there is no merit in this contention. In 2 Jones, Commentaries on Law of Evidence, sec. 366, it is said, quoting from a New Hampshire case (Hardy v. Merrill, 56 N.H. 227): "'But without reference to any recognized rule or principle, all concede the admissibility of the opinions of nonprofessional men upon a great variety of unscientific questions arising every day and in every judicial inquiry. These are questions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness and health, questions also concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention.' Admittedly difficult as the task of framing a rule on the subject is, Foster, Chief Justice, in the New Hampshire case referred to, formulated a rule, which, if properly applied, will serve as a useful instruction. Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained." See, also, 3 Wigmore, Evidence, sec. 1974; Hewitt v. Eisenbart, 36 Neb. 794, 55 N.W. 252; Western Travelers' Accident Ass'n v. Munson, 73 Neb. 858, 103 N.W. 688.

It is next claimed that there was error in permitting Dr. Pepper to testify relative to finding the plaintiff in a convulsive condition six months after the occurrence of the injury...