Mercer v. Omaha & Council Bluffs Street Railway Company

• Citation: 188 N.W. 296,108 Neb. 532
• Decision Date: 06 May 1922
• Docket Number: 22037
• Parties: JOHN P. MERCER, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

188 N.W. 296

108 Neb. 532

JOHN P. MERCER, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 22037

Supreme Court of Nebraska

May 6, 1922

APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Reversed.

REVERSED.

John L Webster, for appellant.

Kennedy Holland, De Lacy & McLaughlin, contra.

Heard before LETTON, DEAN and DAY, JJ., CLEMENTS (E. J.) and WELCH District Judges.

OPINION

CLEMENTS, District Judge.

In this action plaintiff seeks to recover damages for personal injuries sustained by him as a result of being struck by defendant's street car, which accident, he alleges, was caused by defendant's negligence. The defendant's answer is a general denial. From a verdict and judgment in favor of plaintiff for $ 5,000 defendant appeals.

Defendant has a car barn located on the west side of Tenth and the north side of Pierce street in Omaha. Just east of the entrance of this barn, which is in the northeast corner thereof, defendant, with the permission of the city, caused to be constructed a retaining wall and areaway extending two feet east of the west line of Tenth street and about ten or twelve feet long. Said wall is about six inches thick. Its top is level with the surface of the sidewalk and, because the ground slopes to the north, the south end is twenty-nine and the north end nine inches high. From its Tenth street line a main switch track runs southwest into said barn, which is called track 6. Just west of the street line a switch is located, by means of which cars may be deflected onto a track running thence south near the east side of the barn, which is called track 12. At about 5:45 p. m. on August 5, 1918, the plaintiff, when on his way home from his work, stopped on Tenth street in front of the entrance of said barn to wait for a friend employed therein who usually quit work at 6 o'clock. While waiting he sat on the west edge of the sidewalk and on the top of said retaining wall near its north end with his feet and legs in the areaway. When he had been there 10 or 15 minutes one of defendant's cars was backed from Tenth street over said switch track which crossed the sidewalk a short distance from the north end of said wall. The rear trucks of the car so being backed passed over said switch and continued on track 6, as was intended, but before, or at the time, the trucks at the other end of the car reached said switch it split, said trucks were deflected onto track 12, which caused the end of the car to swing south over and impinge upon the sidewalk and retaining wall. When doing so the side or step of said car struck plaintiff, breaking his hip and seriously injuring him.

In defendant's brief there are various assignments of error which we shall proceed to consider, but not in the order in which they are assigned. In assignment No. 4 it is alleged that the court erred in giving that part of instruction No. 3 which reads as follows: "If you find from a preponderance of the evidence that the plaintiff herein was sitting on the public sidewalk or a retaining wall forming a part of said sidewalk, the plaintiff was where he had a right, as a matter of law, to be." In each of instructions Nos. 2, 3, and 4, tendered by defendant, the court was requested to instruct the jury that, if they found that plaintiff entered that part of the sidewalk space, which the city permitted the defendant to use for a retaining wall, for his own convenience, and not as a passenger or employee of defendant, then plaintiff is not entitled to recover, unless they further find that the defendant wilfully or wantonly injured him; and in assignments 5, 6 and 7 defendant alleges that the court erred in not giving said instructions. These four assignments of error involve and raise the same questions of law, viz.: (1) Did the plaintiff have the right to be in the place where he was injured? (2) Did the defendant owe him any duty other than to refrain from wilfully or wantonly injuring him? They will, therefore, all be considered together.

In his argument on these assignments, counsel invokes and relies on the familiar rule that the owner of premises owes no duty to a trespasser or licensee except to refrain from wilfully or wantonly injuring him. At the time plaintiff was injured he was not on premises owned by defendant or under its exclusive control. The city council had no right to give the ownership of any part of the street to defendant and did not attempt to do so. Whether it had the power to give defendant the exclusive use of any portion of a public street need not be determined, for neither expressly nor by implication did the permit relied on attempt to do so.

It is the settled law of this state that the general public has the right to the use of a public street and every part thereof, regardless of whether there is a street car track on it or not. The right given the street car company is a privilege to occupy and use the street in conjunction with, and not to the exclusion of, the general public. In its use of the street said company is a part of the public, and every user, whether street car company, driver of a vehicle, or pedestrian, is each bound to exercise ordinary care for his own safety and to prevent injury to others. Lucas v. Omaha & C. B. Street R. Co., 104 Neb. 432. We think this doctrine applies with equal force to the use by defendant of that portion of Tenth street in question. Defendant was not the owner of that part of the street. Its right therein obtained by said permit is that of a licensee and does not exclude the use thereof by the public, at least only in so far as such use would interfere with a proper use of it by defendant. It follows that the rule so invoked is not applicable in this case.

The next question to be determined is: Was plaintiff's use of the street, at the time and place of his injury, such as to absolve defendant from the duty of taking ordinary care to prevent injurying him? To sustain the contention that this question should be answered in the affirmative, cases from the New England and some other states are cited which hold that only a traveler can recover damages from a town or city for injuries resulting from a defect in the street. Nearly all of these cases are from states whose statutes impose on the corporation the duty of keeping highways within its limits, safe for travelers or travel thereon and make it liable for damages resulting from its failure to do so. It is not difficult to understand why the courts in states having such statutes should limit the right of recovery to the persons to whom the duty is due. The foregoing rule does not generally obtain in states whose statutes do not contain provisions similar to those above referred to. In 6 McQuillan, Municipal Corporations, sec. 2754, it is said:

"In some states, in nearly if not all where the liability is statutory and the ruling is influenced by the particular wording of the statute, it is held that the person injured must have been using the street, at the time of the accident, for the purpose of travel. * * * In most states, however, the liability is not confined to travelers, but extends to a person stopping on the street to converse with another, or stopping to see a procession pass, or using the street for convenience or pleasure, and there are liabilities to abutting owners and to children playing upon the street."

The leading case, in which the rule referred to in the last clause of said quotation is announced, is City of Chicago v. Keefe, 114 Ill. 222, 2 N.E. 267. That case has been cited with approval in numerous subsequent decisions and said rule has been approved and adopted in several other states, including Nebraska.

City of Omaha v. Richards, 49 Neb. 244, 68 N.W. 528, was an action to recover damages for the death of a boy, while playing in the street, by drowning in a pond of water negligently permitted by the city to remain there. In the opinion the following from the Keefe case, supra, is quoted with approval:

"There is no limitation in the statute that the streets shall be kept in repair 'for travelers.' They are to be kept in repair as streets, and, by necessary implication, for all purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public as highways, without regard to what may be the lawful motives and objects of those traversing them, that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations."

A judgment for the plaintiff in the Richards case was affirmed, although the boy was in no sense a traveler, but was merely playing on the street. This decision is in direct conflict with three of the cases cited and relied on by defendant in which it was held that no recovery could be had for injuries by a child or other person while playing on the street.

The case at bar has been briefed and argued upon the theory that the same rule governs defendant's liability herein as would govern the liability of the city if plaintiff's injuries had resulted from a defect in the street. If it should be determined on this theory and the rule stated in the Richards case, supra were applied herein, the question of whether plaintiff was, at the time of the accident, a traveler is immaterial; and we are not prepared to say that a proper application of the rule relied on by defendant would prevent a recovery by plaintiff. It is certain that, in passing over Tenth...