McLean v. Omaha & Council Bluffs Railway And Bridge Company.

• Decision Date: 05 October 1904
• Docket Number: 13,602
• Citation: 100 N.W. 935,72 Neb. 447
• Parties: DELLA MCLEAN, ADMINISTRATRIX, v. OMAHA & COUNCIL BLUFFS RAILWAY AND BRIDGE COMPANY. [*]
• Court: Nebraska Supreme Court

100 N.W. 935

72 Neb. 447

DELLA MCLEAN, ADMINISTRATRIX, v. OMAHA & COUNCIL BLUFFS RAILWAY AND BRIDGE COMPANY. ^[*]

No. 13,602

Supreme Court of Nebraska

October 5, 1904

ERROR to the district court for Douglas county: JACOB FAWCETT JUDGE. Affirmed.

AFFIRMED.

Charles S. Lobingier, T. J. Mahoney and N. A. Crawford, for plaintiff in error.

W. J Connell and John L. Webster, contra.

AMES C. LETTON and OLDHAM, CC., concur.

OPINION

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 14th 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 14th street. At that place the avenue had 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 twelve 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, on 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 seen by the defendant's agents and servants in charge of said car in time to have stopped said car before the same struck" the deceased. It is also alleged that the car was being propelled "at a high rate of speed," but the rate of speed is not charged to have been excessive or negligent, or to have contributed unduly to the casualty. Indeed, such an accusation would have been somewhat inconsistent with the claim that, by the exercise of proper care and...