Omaha St. Ry. Co. v. Duvall

• Citation: 40 Neb. 29,58 N.W. 531
• Parties: OMAHA ST. RY. CO. v. DUVALL.
• Decision Date: 03 April 1894
• Court: Supreme Court of Nebraska

40 Neb. 29

58 N.W. 531

OMAHA ST. RY. CO.

v.DUVALL.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1. An instruction that if the motorman in charge of a street car could, in the exercise of reasonable care, have seen the plaintiff in time to have checked his car after plaintiff's horse sprang upon the track, and before the car collided with plaintiff's horse, and if plaintiff was not guilty of negligence which contributed to his injury, then the defendant would be liable, held properly given, qualified, as it was, by an immediately preceding instruction that if the injury resulted from the sudden fright of plaintiff's horse, by reason of which said horse sprang in front of the moving car, and if the motorman, in the exercise of reasonable care, could not have checked the car in time to have prevented the collision, the defendant would not be liable; these alternatives presenting, as they did, the only disputed propositions of fact involved.

2. As applied to the liability of street-railway companies whose cars are propelled by means of electricity, the following instruction was proper: “The violation of any statutory or valid municipal regulation established for the purpose of protecting persons or property from injury is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur. Thus, the violation of the statutes or ordinances regulating the speed of vehicles, horses, or trains, or street cars is such a breach of duty as may be made the foundation of an action by any person belonging to the class intended to be protected by such regulation, provided he is specially injured thereby.”

3. Street-railway companies have no such proprietary interest in that portion of the streets upon which their tracks are laid as limits the right of the general public, also, to use the same territory as a part of the public highway. Whether an injury resulting from such joint use is attributable solely to the negligence of the railway company, or is wholly or in part imputable to contributory negligence of the person by whom injury has been sustained, is a question of fact, to be determined by the jury.

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

Action by John Duvall against the Omaha Street-Railway Company to recover for personal injuries resulting from a collision of plaintiff's horse with defendant's street car. There was judgment for plaintiff, and defendant brings error. Affirmed.John L. Webster, for plaintiff in error.

Lee S. Estelle and Crow, Johnson & Cooper, for defendant in error.

RYAN, C.

This action was begun in the district court of Douglas county by the defendant in error for the recovery of damagesalleged to have been inflicted by an electric motor car negligently operated by the agents of plaintiff in error. In consequence of the negligence alleged, the defendant in error averred that the aforesaid car ran against the horse on which he was riding, in the streets of the city of Omaha, with such force as to throw the defendant in error upon the pavement with such violence as to produce concussion of his brain and spine, whereby it resulted that the defendant in error became so insane that he was, of necessity, confined in the insane hospital of this state from some time in March, 1890, until June 17th, immediately following. There were other averments as to the nature and extent of the injuries suffered, which need not be reviewed at length, for plaintiff in error, in its brief, concedes that the amount of damages is not in question, provided the defendant in error was entitled to recover. Issue was duly joined upon the averments of the petition, and, on a trial had, there was a verdict and judgment for $4,330. There was evidence introduced showing that on March 19, 1890, John Duvall, plaintiff in the district court, was riding his horse northward on that portion of Twenty-Fourth street which lies on the east side of, and along, the street-car line on said Twenty-Fourth street, at about the intersection of that street with Parker street, when plaintiff's horse became suddenly frightened, and jumped upon the nearest track of the defendant; that on the further track there was moving from the north a train of the defendant, which left no safe way of escape for plaintiff but by moving to the right with his horse; that, though plaintiff's horse was ordinarily manageable, at this particular time he refused to turn to the right and leave the street-railway track upon which he had jumped; that there was then, at a distance of about 125 feet, moving towards plaintiff at a rate of speed of about 12 miles per hour, from the south, along said track last referred to, a car under the control of the employés of the defendant, by whom, with ordinary care, the dangerous situation of plaintiff could have been seen in time to have avoided a collision with him and his horse. There was evidence, also, that the motorman who had control of the movements of the said fast-mentioned car was, at the particular time last referred to, engaged in noting the speed of a bicycle which was keeping pace with the advance of the said car, rather than keeping a lookout for objects upon the track in front of the car of which he had management, and that owing to his said inattention, and the great speed with which said car was moving, it resulted that the said car struck plaintiff's horse, and caused the injury, as described in the petition. There was introduced in evidence an ordinance of the city of Omaha which prohibited the running of street cars in said city at a speed greater than eight miles per hour. There was sufficient evidence to justify a finding that the motor last above referred to, followed by a trailer, was moving at the rate of 12 miles per hour when the accident happened, and there was evidence to justify a contrary conclusion. The same observation is applicable to the claim that the motorman was otherwise engaged than in observing whether or not there was danger ahead, either to the cars under his charge, or to individuals on the track in front of him. No review of the evidence will therefore be necessary, for the verdict is sufficiently supported by proofs as to every essential to sustain a recovery, under...