Oakes v. Omaha & C. B. St. Ry. Co.

Citation104 Neb. 788,178 N.W. 758
Decision Date29 June 1920
Docket NumberNo. 20906.,20906.
CourtSupreme Court of Nebraska
PartiesOAKES v. OMAHA & C. B. ST. RY. CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

Ordinarily a question involving the rate of speed of a street car is not a question for expert testimony.

When the evidence is in direct conflict in respect to the proximate cause of an injury arising from collision with a street car, the question is one of fact for the jury.

“Street railway companies have no such proprietary interest in that portion of the streets upon which their tracks are laid as limits the right of the general public also to use the same territory as a part of the public highway. Whether an injury resulting from such joint use is attributable solely to the negligence of the railway company, or is wholly or in part imputable to contributory negligence of the person by whom injury has been sustained, is a question of fact to be determined by the jury.” Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531.

When different minds may reasonably reach different conclusions from a given state of facts as to whether negligence or contributory negligence has been established, the question of negligence is for the jury.

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

Action by Forest M. Oakes against the Omaha & Council Bluffs Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.John L. Webster and William M. Burton, both of Omaha, for appellant.

Myron L. Learned and Joseph T. Votava, both of Omaha, for appellee.

DEAN, J.

Plaintiff recovered a verdict and judgment thereon for $427 as damages for 7 head of lambs that were destroyed and 40 that were injured by the negligent and unlawful operation, so it is alleged, of one of defendant's street cars on Twenty-Fourth street, that being the main throughfare between Omaha and South Omaha. Defendant appealed.

The colliding car was coming from the north, and the sheep were being driven from the south. The accident happened about 150 or 200 feet south of the point where U street intersects Twenty-Fourth street.

Plaintiff resides on a farm about 3 miles south of Omaha, where he buys and feeds lambs for market. Between 3 and 4 o'clock in the afternoon of January 30, 1919, he left home, driving a flock of 280 lambs to be sold at the stockyards at South Omaha. Assisting him as drivers were his son, Loren, about 13, and George Mosher, a stockyards employé and sheep driver of 20 years' experience. At the time of the collision it was about 7 in the evening and dark. Twenty-Fourth street swerves to the east about its own width just before and as it crosses the U street intersection, and continues thence directly south. The street is 40 feet in width and slopes to the south.

Plaintiff testified that the car did not stop at U street; that he with his flock was about 150 feet south of the street car when he first saw it coming at or about U street; that the motorman, to whom he shouted at the top of his voice, did not slacken his speed; that the street lamp was lighted at the intersection and the electric headlight of the car was lighted; that it ran 100 feet or more through the flock before it stopped; that when the lambs were struck they were piled up promiscuously in front of the car and on each side of it and beneath it; that just before the impact the sheep occupied about two-thirds of the width of the street and about 150 or 200 feet of its length; that the car finally came to a stop when it was about opposite plaintiff; that the shortest route between plaintiff's farm and the stockyards lay directly north on Thirtieth street, but that, owing to snowdrifts, it was impractical to drive the sheep that way; that the route he took was about a mile longer than by Thirtieth street, on which he would also be compelled to cross two or three tracks; that the snow was two or three inches deep on the level; that just before the collision they met four or five cars, only a few minutes apart, that were not running on regular schedule; that these cars and also a car they met after the collision stopped until they got the sheep off the track; that the prevailing conditions were substantially the same as when they met the car that caused the loss; that when the car struck the sheep its speed was from 20 to 25 miles an hour.

Roy Mace lives about 400 feet south of U street on Twenty-Fourth street. He testified on the part of plaintiff that he saw the car approaching from the north, and that it was moving at the rate of 20 miles an hour; that it is customary for stockmen to drive sheep and cattle in the daytime on that street, and that it is not unusual to see them pass by in the nighttime on their way to the stockyards, that are distant about 8 or 10 blocks. George Mosher, called by plaintiff, testified that the car came on at the rate of 20 miles an hour. He further testified:

“The car come around there and ran into these sheep, and I put up my hands and hollered at him. I couldn't make him hear me, and he just missed me. I just got out of the road in time myself, or he would have got me. He piled these sheep all up in front of the fender, clean up to the glass before he passed me. Then he carried these sheep down 100 feet, I guess, maybe better, maybe 150 feet, made a good run at it. * * * Q. When did you first see the street car, Mr. Mosher? A. I seen it when it came around the corner. Q. That was about how far in front of your sheep? A. Oh, about, I should say, 75 to 100 feet. Q. And do you know whether or not it let off a...

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