Omaha St. Ry. Co. v. Leigh

• Decision Date: 02 December 1896
• Citation: 69 N.W. 111,49 Neb. 782
• Parties: OMAHA ST. RY. CO. v. LEIGH.
• Court: Nebraska Supreme Court

49 Neb. 782

69 N.W. 111

OMAHA ST. RY. CO.

v.LEIGH.

Supreme Court of Nebraska.

Dec. 2, 1896.

Syllabus by the Court.

The evidence in this case examined, and held insufficient to sustain the verdict of the jury.

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

Action by Lillie Leigh, administratrix of Elmer Leigh, deceased, against the Omaha Street-Railway Company, for death by wrongful act. From a judgment for plaintiff, defendant brings error. Reversed.

John L. Webster and Breckenridge & Breckenridge, for plaintiff in error.

Cowin & McHugh, for defendant in error.

RYAN, C.

An opinion in this case was reported in 36 Neb. 131, 54 N. W. 134. Subsequently, upon being remanded, there was a verdict for the plaintiff in the district court of Douglas county in the sum of $3,000, upon which a judgment was duly rendered. The street-railway company, by its petition in error, seeks a reversal of this judgment. We have found in the record no question of importance, other than that to which counsel have for the most part directed their attention, and that is whether or not the verdict was sustained by sufficient evidence. The railway company was charged in the petition with having furnished for use on one of its lines a horse of known vicious disposition, by which Elmer Leigh was on September 5, 1889, kicked so severely that he died shortly afterwards. There is no sufficient evidence to sustainthis verdict, unless it appeared that a certain horse owned by the company was the one furnished Leigh to drive. The street railway at the time of the accident had two horses, each of which was known by the name of “Dude.” It is conceded that one of these, a very black animal, was ordinarily of a gentle disposition; and by the company it is insisted that this was the animal which kicked Leigh, being thereto provoked by his negligent conduct in repeatedly striking it under the flank with the lines. The other animal was of such a dark-brown or dark-bay color that, when it had first shed its coat, it might be properly described as black. The defendant in error insists that there was such evidence as justified the jury in assuming that the horse that kicked Leigh was the dark-brown one, as to which, without question, the proofs were satisfactory that it was of a vicious disposition, of which disposition the company was sufficiently aware. Mr. Leverton was foreman of the barn of the company on Twenty-Sixth and Lake streets, and testified, upon being called as a witness by the defendant in error, that the horse that kicked Mr. Leigh was called by the name of “Dude.” Daniel Martin, another witness for the defendant in error, then testified that he had been in the employ of the company, and knew the horse called “Dude,” and that this horse was one that would kick while being driven, and that, on account of his bad disposition, it was usual to work this horse only when there was little travel on the streets. This witness described the horse to which he was referring as dark brown, and not coal black, though at some times of the year he would be called a black horse, and said that this horse was kept for three years at the barn of the company on Twenty-First and Cuming streets, from whence he was transferred to the Lake street barn. This witness further testified that he quit the service of the company in January of the year 1889, and that the above transfer was after that time,--some time in the winter or fall. Frank Merritt, another witness of the defendant in error, testified that on September 5, 1889, he was working for the street-railway company; that he remembered but one horse known by the name of “Dude” owned by the company; that said horse would kick if he got over the tug, or if whipped; and that this horse, during the most of the six years that witness was in the employ of the company, was kept at the Cuming street barn. This witness fixed the time he quit the employ of the street-railway company as 3 1/2 years...