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

• Decision Date: 18 April 1907
• Docket Number: No. 14,757.,14,757.
• Citation: 111 N.W. 784,78 Neb. 767
• Parties: OLNEY v. OMAHA & C. B. ST. RY. CO.
• Court: Nebraska Supreme Court

78 Neb. 767

111 N.W. 784

OLNEY

v.OMAHA & C. B. ST. RY. CO.

No. 14,757.

Supreme Court of Nebraska.

April 18, 1907.

Syllabus by the Court.

The right to use the streets of a city by the driver of a horse and the manager of a street car are equal, and each must use it with reasonable regard for the safety and convenience of the other.

Where the motorman in charge of a car sees, or by the use of reasonable care may see, that a horse is unduly frightened by his car, he must do what he reasonably can to prevent danger and damage; but, if the horse shows no signs of fright which are observable to him until too late to stop, he is not negligent in running into a horse which rears and alights immediately in front of the car.

Evidence examined, and held insufficient to submit to the jury.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Douglas County; Redick, Judge.

Action by Dana B. Olney against the Omaha & Council Bluffs Street Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.P. A. Wells, for appellant.

John L. Webster and W. J. Connell, for appellee.

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 his 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 per 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...