Omaha St. Ry. Co. v. Mathiesen

Citation73 Neb. 820,103 N.W. 666
PartiesOMAHA ST. RY. CO. v. MATHIESEN.
Decision Date17 May 1905
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. If the driver of a vehicle who arrives at a street intersection and who sees an approaching car is justified in believing that there will be sufficient time for him to cross the track before the car, if run at its usual and ordinary rate of speed, will reach the point of crossing, he cannot be said as a matter of law to be guilty of negligence in attempting to cross, and the question is a question of fact for the jury, to be determined from all the evidence before it.

2. The exclusion of testimony to show that the car might have been seen at a greater distance is not erroneous, since the question was not whether the plaintiff might not have seen the car at a greater distance, but whether he was guilty of negligence in attempting to cross with the car at the distance it actually was when he saw it.

Commissioners' Opinion. Department No. 1. Error to District Court, Douglas County; Redick, Judge.

Action by Nels Mathiesen against the Omaha Street Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.John L. Webster and W. J. Connell, for plaintiff in error.

Weaver & Giller and Frank T. Ransom, for defendant in error.

LETTON, C.

The facts in this case are set forth in the opinion by Mr. Commissioner Ames in Mathieson v. Omaha Street Railway Co. (Neb.) 92 N. W. 639. At that time the judgment of the district court at a former trial was affirmed. Upon a rehearing, 97 N. W. 243, the judgment was reversed, and a new trial ordered. At the new trial a verdict and judgment were rendered against the defendant, from which it prosecutes error.

At the former hearing before this court its attention was directed to the question whether or not the evidence on the part of the plaintiff was sufficient to warrant the court in giving a peremptory instruction for the defendant at the close of the plaintiff's case, and it was held error to so direct. At the last trial evidence was introduced by the defendant as to the speed of the car which was not produced at the former trial, and it is now contended that, taking all the evidence together, it is not shown that the defendant was guilty of actionable negligence. There is a conflict in the evidence with reference to the rate of speed at which the car was running. It was held upon the rehearing that there was sufficient evidence given by the plaintiff himself at the former trial to render it necessary to submit the question as to whether or not the defendant was operating its car at a negligent rate of speed to the jury, and the fact that the defendant has produced additional evidence upon its side of the controversy, while the plaintiff's testimony is substantially the same as on the former trial, does not change the effect of this adjudication. This is the law of the case, and will not be re-examined.

The principal ground upon which the defendant now seeks to reverse the judgment of the district court is that the evidence shows that the plaintiff was guilty of contributory negligence. It appears that Leavenworth street, from Twenty-First street to Twentieth street, has a down grade of 3 per cent. It seems that it is 17 feet from the south curb of Leavenworth street at Twentieth street to the south rail of the street railway track; that the plaintiff was driving north upon Twentieth street at a rate of between three and four miles an hour. He testifies that he looked east and saw no car, then looked west and saw the headlight of a car opposite where he knew certain flats to be, a distance of about 200 feet; that he immediately whipped up his horses in order to get across the track, but that the car struck the wheel of his wagon before he cleared the track. The question, then, is presented whether or not he was guilty of contributory negligence in attempting to drive across the tracks at a time when his horses' feet were at the track, and when he saw a street car at a distance apparently of from 150 to 200 feet. He testifies that his wagon and horses were 18 feet 4 inches long; consequently, in order to clear the track, he would have been compelled to move forward more than that distance. The ordinances of the city of Omaha prohibit the street car company from operating its cars at a speed greater than 15 miles an hour, and the testimony on the part of the defendant is that the usual running speed is from 8 to 10 miles an hour, and that this was the speed of this car. If the street...

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7 cases
  • Guy v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1920
    ...authorities, see Chauvin v. R. Co., 135 Mich. 85, 97 N. W. 160;McQuisten v. R. Co., 147 Mich. 67, 110 N. W. 118;Omaha St. R. Co. v. Mathiesen, 73 Neb. 820, 103 N. W. 666;Fitzgerald v. R. Co., 97 Neb. 856, 151 N. W. 931;Cincinnati R. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 L. R. A. 276;S......
  • Guy v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1920
    ......Detroit U. R. Co., 135 Mich. 85 (97 N.W. 160); McQuisten v. Detroit C. S. R. Co., 147 Mich. 67 (110 N.W. 118);. Omaha St. R. Co. v. Mathiesen, 73 Neb. 820 (103 N.W. 666); Fitzgerald v. Omaha & C. B. S. R. Co., 97 Neb. 856 (151 N.W. 931); Cincinnati St. R. Co. v. ......
  • Powers v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • July 2, 1909
    ...United R., 135 Mich. 85, 97 N. W. 160;McQuiston v. Detroit Citizens' St. R. Co., 147 Mich. 67, 110 N. W. 118;Omaha St. R. Co. v. Mathiesen, 73 Neb. 820, 103 N. W. 666. Many cases from other states are called to our attention in appellee's argument which have more or less bearing upon this c......
  • Powers v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • July 2, 1909
    ......See, Chauvin v. Detroit United. R., 135 Mich. 85 (97 N.W. 160); McQuisten v. Detroit. Citizens' St. R. Co., 147 Mich. 67 (110 N.W. 118);. Omaha St. R. Co. v. Mathiesen, 73 Neb. 820 (103 N.W. 666). Many cases from other states are called to our. attention in appellee's argument which have ......
  • Request a trial to view additional results

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