Omaha Street Railway Company v. Larson

• Decision Date: 16 December 1903
• Docket Number: 13,226
• Citation: 97 N.W. 824,70 Neb. 591
• Parties: OMAHA STREET RAILWAY COMPANY v. NELS LARSON
• Court: Nebraska Supreme Court

97 N.W. 824

70 Neb. 591

OMAHA STREET RAILWAY COMPANY v. NELS LARSON

No. 13,226

Supreme Court of Nebraska

December 16, 1903

ERROR to the district court for Douglas county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

John L Webster, for plaintiff in error.

Frank H. Gaines, James E. Kelby and John A. Storey, contra.

OLDHAM C. HASTINGS and AMES, CC., concur.

OPINION

OLDHAM, C.

This is an action to recover damages alleged to have been sustained by reason of the negligence of the Omaha Street Railway Company. The allegations of the petition that are material to an understanding of this controversy are:

"On September 16, 1899, plaintiff with his horse and wagon was driving northward on Military avenue in Omaha and, when about half way between Parker and Decatur streets in said city on the east side of Military avenue, desiring to cross to the west side of said Military avenue, turned his horse to do so but, as the horse stepped between the two east rails of defendant's tracks on said street, a motor car belonging to defendant, propelled by electricity and running at a dangerously and negligently high rate of speed, and without any warning to plaintiff, negligently ran into and struck plaintiff's horse, which was hitched to the wagon in which plaintiff was riding, and said horse became entangled in the fender on the front end of defendant's said motor car.

"Plaintiff says that when defendant's motor car struck his horse, as aforesaid, the motorman in charge of said car, both seeing and knowing the imminent danger in which plaintiff was placed by the negligence of said defendant, and having the power to stop said car, in absolute disregard of defendant's duty to stop said car and avoid injury to plaintiff, negligently failed even to diminish the speed of said car, but on the contrary said motorman continued to run said car at great speed for about the total distance of a block, pushing, dragging and carrying plaintiff's horse and wagon for the entire distance.

"Plaintiff says that, after defendant's motor car struck his horse as aforesaid, defendant's motorman who was in charge of said car, and who could have stopped said car, and whose duty it was to stop said car, negligently continued to run it at great speed, whereby plaintiff was greatly and seriously injured, without the fault of plaintiff, for, after defendant's motor had, as aforesaid, pushed, dragged and carried plaintiff's said horse and wagon for about 120 feet, plaintiff was forcibly and violently thrown from his wagon, and hurled to the pavement, and was seriously and severely cut, injured and bruised about his head, back, spine and legs, his right leg being so badly broken that it was necessary, in order to save plaintiff's life, to amputate his leg, which was accordingly done, whereby the plaintiff was made to suffer great pain, and physical and mental anguish, and has become a cripple for life, and plaintiff still suffers from the injuries sustained by him in his head and spine."

Defendant answered with a general denial, coupled with a plea of contributory negligence. The reply was a general denial. There was a trial to a jury; verdict for plaintiff; judgment on the verdict, and the defendant brings the case to this court on error.

It will be observed that the charge of negligence in the petition was the failure of the defendant to check the speed of the car and stop it, after the impact of the car with the horse and wagon, and that, by its want of care in this particular, the injury was occasioned. This is the sole issue of negligence tendered by the petition. At the outset it is insisted by the defendant Street Railway Co. that plaintiff has no right to maintain an action for defendant's failure to use diligence in stopping its car, without showing himself free from negligence in going on the track; that the subsequent negligence, if any, of the company is indivisible from the negligence of Larson in the first instance, and if as alleged by defendant he drove on the track without stopping to look and listen, such contributory negligence on his part constitutes a complete defense to the action. On the question as to whether the defendant used ordinary diligence in attempting to stop the car, after the impact with defendant's horse and wagon, the testimony is fairly conflicting. Plaintiff's evidence tends to show that defendant was dragged about 116 feet after the impact, before the vehicle was overturned and the injury inflicted. Defendant's testimony, on the other hand, tended to show that the injury was inflicted within a few feet of the place of contact, and that reasonable efforts were used to stop the car after the collision.

The question then arises as to whether plaintiff's evidence tends to show an intervening efficient cause, which of itself directly and immediately occasioned the injury. The test is: Was the failure to stop the car a new and independent force, acting in and of itself in causing the injury? If so, it superseded the alleged contributory negligence complained of, so as to make plaintiff's want of proper care in driving on the track remote in the chain of causation. This view is supported by numerous decisions of this court. In Dailey v. Burlington & M. R. R. Co., 58 Neb. 396, 78 N.W. 722, the court, speaking through HARRISON, C. J., say:

"It is a well established doctrine that notwithstanding a person may have so placed himself as to be liable to injury, yet if another, after knowledge of the fact, inflict injury because of the failure of the latter to exercise ordinary care to avoid it, the former may recover damages." The same doctrine is announced in Union P. R. Co. v. Mertes, 35 Neb. 204; St. Joseph & G. I. R Co. v. Hedge, 44 Neb. 448, 62 N.W. 887; Omaha Street R. Co. v. Martin, 48 Neb. 65, 66 N.W. 1007. The petition is framed in accordance with this doctrine and, in our view, states a good cause of action, and...