Omaha St. Ry. Co. v. Cameron

• Decision Date: 03 January 1895
• Citation: 61 N.W. 606,43 Neb. 297
• Parties: OMAHA ST. RY. CO. v. CAMERON.
• Court: Nebraska Supreme Court

43 Neb. 297

61 N.W. 606

OMAHA ST. RY. CO.

v.CAMERON.

Supreme Court of Nebraska.

Jan. 3, 1895.

Syllabus by the Court.

1. Cameron sued a street-railway company for damages sustained by him by reason of one of its cars striking and overturning his buggy while he was driving it across the railway company's tracks at the intersection of two streets. The court refused to give an instruction, tendered by the railway company, as follows: “While the law requires that the railway company shall use all ordinary care and caution while running its trains by intersecting streets, still travelers upon the street at such intersections are likewise required to use care and caution in getting on the street in front of the moving trains. And where the plaintiff, as in this case, was familiar with Twenty-Fourth street, and with the street-car tracks thereon, and was familiar with the fact that the said street cars are operated by electricity, and are known to run at considerable speed, it was his duty, in driving upon this street from an intersecting street, to use care and caution to avoid coming into collision with the street cars; and the failure of the plaintiff to use such care and caution, if he did so fail to use such care and caution, would prevent recovery of damages; and if from the whole case you find that the plaintiff was guilty of such carelessness on his part, then your verdict should be for the defendant.” Held, that the court did not err in refusing to give the instruction--if for no other reason--because of the fact that it required the court to tell the jury that Cameron was possessed of certain knowledge, and familiar with certain facts and circumstances, and that certain duties resulted therefrom, when this knowledge and these facts and circumstances, if known and possessed by Cameron, were elements for consideration by the jury, and it was for the jury to say what duties devolved on him by reason thereof, and whether or not, in driving upon the railway tracks in the manner he did, he was exercising ordinary care.

2. The court instructed the jury: “You are instructed that the relative rights and duties of street cars and travelers on the highway where they are passing each other or going in the same direction is qualified to a certain extent at street intersections. At such an intersection each have the right to cross, and must cross. Neither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.” Held, that the instruction was correct.

3. In such case the court instructed the jury: “The rule of law is that one guilty of contributory negligence cannot recover in an action; but, if you find from the evidence in this case that there was negligence on the part of both plaintiff and defendant, the plaintiff may be entitled to recover, unless you find from the evidence that the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. And if you find that the plaintiff could have so done, but has failed in this particular, then he cannot recover herein.” Held: (1) That the railway company was not prejudiced by the giving of this instruction. (2) The court suggests a doubt as to the propriety of giving an instruction couched in such general language.

4. The evidence examined, and held to support the finding of the jury that the injury of the plaintiff resulted from the negligence of the railway company; the plaintiff himself being at the time in the exercise of ordinary care.

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

Action by James S. Cameron against Omaha Street-Railway Company for damages for personal injuries. Judgment was rendered for plaintiff, and defendant brings error. Affirmed.

John L. Webster, for plaintiff in error.

Breckenridge, Breckenridge & Crofoot, for defendant in error.

RAGAN, C.

James S. Cameron sued the Omaha Street-Railway Company--hereinafter called the “Railway Company”--for damages in the district court of Douglas county. Cameron pleaded that the railway company was a corporation operating a street railway in the city of Omaha on Twenty-Fourth street, among others, the motive power of which was electricity, and for cause of action against the railway company alleged, in substance, that on Twenty-Fourth street the railway company had two tracks, and this street was intersected at right angles by Binney street, running east and west; that about 10 o'clock at night on November 27, 1890, Cameron, with a single horse and buggy, was driving west on Binney street; that he drove on the intersection of the two streets, crossed the east track of the railway company, and while his buggy was on the west track it was struck by a south-bound car on said west track, the buggy destroyed, and Cameron severely injured; that Cameron at all times was in the exercise of ordinary care, and that the damage and injury sustained resulted from the negligence of the railway company in running its car south on the west track on Twenty-Fourth street and across the intersection of Binney street at a high and negligent rate of speed, and from the neglect of the railway company to give any signal or warning of the approach of the car to the intersection of Binney and Twenty-Fourth streets by bell or otherwise. The answer of the railway company was, in substance, a general denial. Cameron had a verdict and judgment, and the railway company brings the case here for review.

The eminent counsel for the railway company has devoted a very large part of his argument in this court to showing that by the use of proper care Cameron could have seen the approaching train, and have kept off the railway track in front of it; that Cameron drove on the railway tracks at the street intersection at a negligent and high rate of speed; that a warning was given of the approach of the car to the intersection of Twenty-Fourth and Binney streets by the ringing of the car bell; that when Cameron drove on the track the car was too close to him to be stopped sooner than it was; that the car was not running at an unusual or negligent rate of speed; and that it is doubtful if the train collided with Cameron's buggy. These are all arguments that could have been, and doubtless were, urged to the jury. They involve only questions of fact, concerning each one of which the evidence was more or less conflicting. The theory of Cameron was that he drove west on Binney street at the rate of five or six miles an hour; that before reaching the intersection of that street with Twenty-Fourth street he listened for a signal or noise of approaching cars, and heard none; that as he drove into Twenty-Fourth street he...