Omaha St. Ry. Co. v. Loehneisen

• Decision Date: 03 April 1894
• Citation: 58 N.W. 535,40 Neb. 37
• Parties: OMAHA ST. RY. CO. v. LOEHNEISEN.
• Court: Nebraska Supreme Court

40 Neb. 37

58 N.W. 535

OMAHA ST. RY. CO.

v.LOEHNEISEN.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1. It is the settled rule in this state that where different minds may reasonably draw different inferences from the same state of facts, as to whether such facts establish negligence or contributory negligence, the question of negligence must be left to the jury.

2. The facts of this case examined, and held to be within the rule above stated.

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

Action by Caroline Loehneisen, administratrix of the estate of Carl Loehneisen, deceased, against the Omaha Street-Railway Company, to recover for the death of decedent. Plaintiff had judgment, and defendant brings error. Affirmed.John L. Webster, for plaintiff in error.

De France & Richardson, for defendant in error.

IRVINE, C.

The defendant in error, as administratrix of the estate of Carl Loehneisen, deceased, brought this action under chapter 21 of the Compiled Statutes, alleging negligence on the part of the street-railway company, causing the death of her intestate. The errors assigned relate to the giving and refusal of instructions; and, for the purpose of considering these errors, we adopt the statement of facts made in the brief of the plaintiff in error. We have, however, some what abridged that statement: Loehneiser was 47 years of age, and employed as a laborer near South Omaha. On the evening of March 22, 1890, he was returning to his home, in the city of Omaha, on a train of plaintiff in error (hereinafter referred to as the railway company). The train was operated by electricity, and consisted of two cars,--one a motor, the other a trailer,--both of them closed cars. The train was passing northward on Sixteenth street, and was brought to a stop at the usual place for passengers to alight, just after crossing Jackson street. The surface of the street was almost level for a considerable distance in each direction from this point. There were two tracks upon the street, four feet apart. The west track was used for south-bound trains; the east track, for north-bound trains. Loehneisen was familiar with the street-car lines, and the movement of cars thereon. After the car stopped, he alighted from the front platform of the trailer, on the side next the parallel track, and stepping across the space between the two tracks, and upon the parallel track, he was struck by a train going south upon that track. At the time when he stepped upon the west track, he did not have time to walk across it before the south-bound train struck him. There is a conflict of testimony as to the rate of speed of the south-bound train, and as to whether or not signals were given of its approach. The petition alleged, as negligence upon the part of the railway company, the failure to provide gates or other guards upon the platforms of its cars on the side next the opposite and parallel tracks; second, the failure of the company to warn passengers, and particularly the deceased, of the danger of getting off the car on the side next the parallel track, and not warning him to look out for approaching trains on that track; third, in running the south-bound train at a high and dangerous rate of speed, and failing to give any signal of its approach; fourth, in running the south-bound train at a high and dangerous rate of speed while passing a north-bound train standing still for the purpose of receiving and discharging passengers, without giving signals or warning of its approach.

We quote all the instructions given by the court upon the subject of negligence and contributory negligence, and we do so, not only for the purpose of more clearly presenting the questions raised as to errors in the giving and refusing of instructions, but also for the reason that these instructions, in our opinion, state concisely and correctly the law applicable to the questions presented in this case. These instructions are as follows: “You are instructed: First. That the ground of plaintiff's action is negligence on the part of the defendant, its agents and employés engaged in running its trains of cars; and the burden is upon the plaintiff to establish by a preponderance--or greater weight--of evidence the allegation in the petition that the injuries received by the deceased were caused by the negligence of defendant, or its employés. The mere fact that an accident occurred, whereby the deceased was killed by the cars of the defendant, is not sufficient to establish the liability of the defendant. Before the plaintiff can recover, she must go further, and prove by a preponderance of testimony that the injury resulted from negligence or want of due care on the part of the defendant or its employés. Second. Negligence is the absence of such care, prudence, and attention as, under the circumstances, duty requires should be given or exercised. It is the omission to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs, would do, in the...