Miller v. Cent. Taxi Co., No. 22359.

• Court: Supreme Court of Nebraska
• Writing for the Court: DEAN
• Citation: 193 N.W. 919,110 Neb. 306
• Docket Number: No. 22359.
• Decision Date: 15 May 1923
• Parties: MILLER v. CENTRAL TAXI CO.

110 Neb. 306
193 N.W. 919

MILLER
v.
CENTRAL TAXI CO.

No. 22359.

Supreme Court of Nebraska.

May 15, 1923.

Syllabus by the Court.

Ordinarily a question involving the rate of speed of a motor-propelled vehicle is not a question for expert testimony. Oakes v. Omaha & C. B. Street R. Co., 104 Neb. 788, 178 N. W. 758.

Where a plaintiff in a personal injury action seeks by appropriate interrogatories on the cross-examination to discover whether the defendant is indemnified from loss by an insurance company, it is error for the court to sustain an objection to interrogatories which tend to develop the fact on that question.

Where plaintiff in a personal injury action recovers a verdict and the trial court directs a remittitur and the defendant appeals, this court will on request of plaintiff in a proper case set aside such remittitur either in whole or in part as the evidence may warrant.

It is elementary that the jury and not the court is the trier of questions of fact.

Evidence examined, and held, that the required remittitur is excessive, and all over $2,000 thereof is ordered vacated under authority of section 9154, Comp. St. 1922.

Appeal from District Court, Douglas County; Goss, Judge.

Action by Charles J. Miller against the Central Taxi Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

[193 N.W. 919]

Brome & Ramsey and J. P. Uvick, all of Omaha, for appellant.

James C. Kinsler and John M. Berger, both of Omaha, for appellee.

Heard before MORRISSEY, C. J., and LETTON, DEAN, and DAY, JJ.

DEAN, J.

This action was brought to recover for personal injuries sustained by plaintiff, as alleged, in a collision between plaintiff's car, which he was driving, and one of defendant's taxicabs driven by an employee of defendant in a negligent and careless manner and at an excessive and unlawful rate of speed. Plaintiff recovered a verdict for $9,250 for personal injuries and $350 for his damaged car, or a total of $9,600. At the trial the late Judge Lee S. Estelle presided. Subsequent to Judge Estelle's death his honor Judge Charles A. Goss overruled defendant's motion for a new trial on condition that a remittitur be filed in the sum of $4,250. Plaintiff, in compliance with the order, filed the remittitur and judgment was rendered in the sum of $5,350, from which defendant has appealed.

Immediately before the accident plaintiff was employed by the Burlington railroad as a locomotive fireman on a switch engine and had been so engaged about seven years. He was then earning from $125 to $150 a month. At the time he was a strong and able-bodied man 42 years of age. The accident happened on the Eleventh street viaduct at Omaha, February 21, 1919, about 11:30 at night. Plaintiff was driving south in a Ford automobile. His wife was seated at his side in the front seat and two of his married sisters and a baby occupied the rear seat. The party was returning from a social visit with friends. Defendant's taxicab was driven by a man named Sullivan, an employee of defendant. He had three passengers, two women and one man, and was driving from the south. The collision occurred not far from the south end of the viaduct, which is about two blocks in length.

When the taxicab was about a block away, plaintiff testified that he first saw its approaching lights; that it came upon the viaduct in a “zigzag” manner and at a speed rate of from 40 to 45 miles an hour; that the speed of his car at no time exceeded 10 or 12 miles an hour; that when the taxicab struck his car he had driven close up to the west or right-hand side of the viaduct and was about 6 inches from the sidewalk, and was just bringing his car to a stop when the impact occurred. In the matter of the position and the speed of the respective cars his evidence was corroborated by Mrs. Tams who was an occupant of the car.

To show the force of the impact, it may be added that the evidence tends to prove that the right front wheel was broken off, the axle and fender were broken, the frame of the car was bent and the top was broken down. It was made worthless for practical purposes, but was valued at from $80 to $100. It also appears that the taxicab continued on its course about 15 or 20 feet after the collision, ran over the opposite sidewalk and then turned over on its side. Its occupants were not seriously if at all injured. Plaintiff testified that when he got out of the car the driver of the taxicab was leaning up against the banister of the viaduct and that he was drunk. On the cross-

[193 N.W. 920]

examination he testified that the driver's conversation and manner indicated drunkenness and he had the smell of intoxicating liquor on his breath.

In respect of his injuries plaintiff testified that the top of his head was severely bruised and cut and his neck was injured and that a throat trouble was induced; that a piece of broken glass from the windshield went through his cheek and that he had other cuts on his face which were less severe; that his hand was injured and became swollen and in a week or so the swelling began to disappear and he discovered that a bone in his hand was broken; that as a result of the injuries to his head he had almost daily headaches and dizzy spells and at times would stagger and almost fall, and that he could not stoop to shovel coal into the locomotive firebox for any considerable length of time. He testified that he returned to his work as fireman on a switch engine about 10 days or two weeks after the accident; that he worked a few days and on account of headaches and dizziness and the injury to his hand he was laid off; that he continued to work intermittently at his occupation one-half or two-thirds of the time for from three to five months; that while he was so occupied the engineer changed work with him and let him run...