E. Omaha St. R. Co. v. Godola

• Decision Date: 17 March 1897
• Citation: 70 N.W. 491,50 Neb. 906
• Parties: EAST OMAHA ST. R. CO. v. GODOLA.
• Court: Nebraska Supreme Court

50 Neb. 906

70 N.W. 491

EAST OMAHA ST. R. CO.

v.GODOLA.

Supreme Court of Nebraska.

March 17, 1897.

Syllabus by the Court.

1. It is not such negligence for a passenger to stand upon the platform of a crowded street car, while in motion, as will per se defeat a recovery for injuries received in consequence of the negligence of the persons in charge thereof. Pray v. Railroad Co., 62 N. W. 447, 44 Neb. 167.

2. Street-railway companies are, in this state, common carriers, and as such are required to exercise more than ordinary skill and precaution in order to insure the safety of passengers upon their trains. Spellman v. Lincoln Rapid-Transit Co., 55 N. W. 270, 36 Neb. 890.

3. A street-railway company, by undertaking the transportation of passengers for hire, assumes towards its patrons the relation of a common carrier, without regard to the character of the easement possessed by it in its right of way.

4. As a general rule, the laws of sister states are, in the absence of proof upon the subject, presumed to be the same as our own.

5. Evidence examined, and held to sustain the verdict and judgment complained of.

Error to district court, Douglas county; Keysor, Judge.

Action by Lewis N. Godola against the East Omaha Street-Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.V. O. Strickler, for plaintiff in error.

Wm. F. Gurley and Frank T. Ransom, for defendant in error.

POST, C. J.

The East Omaha Street-Railway Company, hereafter called the defendant, is engaged in operating a suburban railway by means of electricity, the initial point of its line of road being Sherman avenue, near the eastern boundary of the city of Omaha, and its terminus at Courtland Beach, between four and five miles distant. From Sherman avenue the course of the defendant's track is due east, along what is described as Locust street, to a point about midway between the city and the Missouri river, from whence it extends north to Courtland Beach. On the 6th day of August, 1893, as alleged by the defendant in error, hereafter called the plaintiff, he took passage upon one of the defendant's trains at Courtland Beach for Omaha, and the said defendant, in consideration of the usual fare therefor, undertook to safely carry him to his aforesaid destination; that the train upon which the plaintiff had taken passage was greatly crowded, as the defendant's servants well knew, yet notwithstanding such fact, and in disregard of their duty to the plaintiff and the other passengers thereon, the conductor and motorman in charge of said train negligently and carelessly caused the same to be run into and upon the curve of the defendant's said track at Locust street, at an unusual and dangerous rate of speed, whereby the plaintiff was thrown from said train, in consequence of which he suffered personal injuries, to his damage, etc. The plaintiff recovered in the district court upon the cause of action stated, and the defendant prosecutes error. The allegations of the answer will sufficiently appear from our discussion of the questions presented by the brief and argument of counsel for the defendant.

It is first insisted that there is a failure of proof to sustain the allegation of negligence, and that the speed of defendant's train at the time of the injury was both reasonable and necessary, in view of the circumstances of the case. But, as said by counsel for plaintiff, men in human affairs judge largely by results; and when, as is clearly shown by the record herein, a motor train, crowded inside and out with passengers, is run into a curve with such force as to toss persons seated within to the opposite side of the car, and to throw others from the platform of the motor and trailer to the ground while striving to maintain their positions thereon, a finding of negligence fails to strike the judicial mind as either unreasonable or unwarranted. In this connection a brief reference to evidence may not be out of place. Sergeant Whalen, a police officer of the city of Omaha, testified that he lost his hold upon the front platform of the trailer, and was thrown off, when the train struck the curve. Arthur Creighton, who was sitting upon the dashboard of the trailer, and holding with his right hand to the hood of the car, was, as he testified, thrown over the head of a friend, and lit upon the ground 10 to 15 feet distant. Dr. Carpenter testified that as the train struck the curve he saw several men flying through the air, and was being thrown off himself. John W. Parr, when asked about what occurred when the train reached the curve at Thirteenth and Locust streets, answered: “I don't know what street it is, but where they throwed everybody off.” Phillip McLarnen was asked, “What occurred when you got to that point?” meaning the curve in question, and replied: “They went around that curve at a pretty good hickory. There was several of them took a tumble; they rolled off like pumpkins.” Mr. Lloyd, who, with his wife and son, was seated inside the motor, testified that he was thrown to the opposite...