McLean v. Omaha & C. B. Ry. & Bridge Co.

Decision Date05 October 1904
Citation100 N.W. 935,72 Neb. 447
CourtNebraska Supreme Court
PartiesMCLEAN v. OMAHA & C. B. RY. & BRIDGE CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. In an action by an administratrix to recover damages for the death of the decedent, alleged to have been caused by the negligence of the defendant, it is held, upon an examination of the record, that the court rightfully directed a verdict for the defendant because of the contributory negligence of the deceased.

Commissioners' Opinion. Error to District Court, Douglas County; Fawcett, Judge.

Action by Della McLean, administratrix, against the Omaha & Council Bluffs Railway & Bridge Company. Judgment for defendant, and plaintiff brings error. Affirmed.C. L. Lobingier, T. J. Mahoney, and N. A. Crawford, for plaintiff in error.

W. J. Connell and John L. Webster, for defendant in error.

AMES, C.

This is an action by an administratrix to recover damages from the defendant for having, as it is alleged, negligently caused the death of the decedent. The answer, besides denials, pleads contributory negligence. The defendant owns, maintains, and operates a system of street and interurban electric railroad in and between the cities of Omaha and Council Bluffs. Double tracks of the railroad extend through Avenue A in Council Bluffs, from the intersection of the latter with Fourteenth street, in or near the settled part of the city, in a nearly direct line to a point at or beyond the corporate limits at a distance of two miles or thereabouts from the intersection. The scene of the accident is on Avenue A in a sparsely settled outskirt of the town, from a mile to a mile and a half from Fourteenth street. At that place the avenue has not been brought to a regular grade, and there was no pavement or sidewalk, but there was a traveled wagon way alongside the railway, apparently not much used by the public. The street railway rails were of heavy steel, of the T pattern, laid upon exposed ties from eighteen inches to two feet above the surface of the ground adjacent to the right of way, so that the roadbed presented the general appearance of that of an ordinary commercial railroad in a rural neighborhood. The avenue was unlighted, and the accident happened at about 20 minutes past 12 o'clock of a dark and cloudy night. What occasion the deceased had for being in the locality, or where or when he went upon the roadbed, is not known; but he was walking toward the west, or near the outer rail of the track used by cars moving in the same direction, and at a point about midway between two streets intersecting the avenue he was struck by one of the defendant's cars approaching from the east, thrown violently into the air, and instantly killed. The specific negligence charged is that the car was negligently and carelessly propelled and managed, and that the defendant's agents and servants in charge of it failed to give the usual and ordinary signals of approach, or to employ the usual appliances to prevent the accident, and that, “had proper and usual precautions been taken and the proper and usual appliances been employed,” the deceased “could and would, by the exercise of diligence and care, have been...

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