Olney v. Omaha And Council Bluffs Street Ry. Company

• Decision Date: 18 April 1907
• Docket Number: 14,757
• Parties: DANA B. OLNEY, APPELLANT, v. OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE
• Court: Nebraska Supreme Court

111 N.W. 784

78 Neb. 767

DANA B. OLNEY, APPELLANT, v. OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE

No. 14,757

Supreme Court of Nebraska

April 18, 1907

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

P. A Wells, for appellant.

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

DUFFIE, C. ALBERT and JACKSON, CC., concur.

OPINION

DUFFIE, C.

On or about May 29, 1903, a horse and buggy, belonging to the appellant, was being driven north on Twenty-Fourth street in South Omaha, on the west side of the double tracks of the Omaha & Council Bluffs Street Railway Company, appellee. At a point between H and I streets there was a pile of lumber and a carpenter's bench, at which one Ruffner was at work on or near the sidewalk. The horse reached this point at or near the time a street car coming from the north on the west track was about to pass. The horse reared on his hind legs, and came down with his front feet in front of the car, and was so injured--one of its legs being broken--that he was shortly thereafter shot by a policeman on the street. The buggy and harness were also injured, and this action is brought against the appellee to recover the value of the horse and the damage suffered by the buggy and harness. In his petition the plaintiff alleges that the street railway company was negligent in the following particulars: (1) In running the car at a dangerous and high rate of speed, causing plaintiff's horse to become frightened and uncontrollable, and, although in full view of the motorman, he made no effort to slacken the speed of the car, but continued such speed until the horse was injured and the damage to the buggy and harness sustained; (2) that the motorman, seeing and knowing the danger in which the horse and buggy were placed by defendant's negligence, failed to diminish the speed of the car, and continued to run it at the high speed mentioned for a distance of one-half block after striking the said horse and buggy. Ruffner, the carpenter working at the bench, was a witness and testified that the car was running at the rate of 30 miles an hour. He did not observe the horse and buggy until the horse had reared in the air, and, consequently, cannot tell us of any indications of fright given by the horse prior to that time.

Mr McIntire, the driver, is the only witness throwing any light on this question. In describing the accident, on his direct examination, he said: "Just before I got to H street, the horse became scared, watching the car. I was very careful to have him well in hand. When I saw he was scared, and just as the car got almost opposite, he lunged across in front, and there was a general mix-up. I went up in the air. I sprang just as the car struck the horse and buggy together. I won't attempt to tell the way I went. The bystanders said I went some 10 or 15 feet in the air. I lit on my feet and stumbled and fell." He further testified that the car dragged the horse and buggy in the neighborhood of 50 feet after the collision occurred. "Q. How were you driving the horse at the time just before the accident occurred. A. On a walk. Q. How was the horse acting at that time? A. As I stated before, he was watching the car closely and showed signs of being scared, and I was extra careful in holding a good rein on him." On cross examination he testified as follows: "Q. Your horse was coming along quietly? A. Yes, sir. Q. You had no trouble with the horse until the car came right down opposite the horse, as you say, or it got nearly to the horse? A. Nearly so. Q. And then the horse suddenly reared up, did it not? A. Yes, sir. Q. And it reared and came down toward the east? A. Yes, sir. Q. That would bring the horse, which had previously been on the west side of the street, over on the track portion? A. Yes, sir. Q. And just at the instant that the horse got there, that instant the car struck him? A. It struck him and the buggy together, the fore part of the front wheel. * * * Q. You did not anticipate that the horse was going to rear and go over on the track just in front of that motor, did you, until he did it? A. If I had I would have jumped from the buggy and turned him loose. Q. So you did not anticipate the horse would do as ridiculous a thing as that, did you? A. No, sir; I didn't. Q. And so far as you...