Redwelski v. Omaha & Council Bluffs Street Ry. Co.
| Decision Date | 15 March 1940 |
| Docket Number | 30745. |
| Citation | 290 N.W. 904,137 Neb. 681 |
| Parties | REDWELSKI v. OMAHA & COUNCIL BLUFFS STREET RY. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Where the evidence was insufficient to sustain a judgment in favor of the plaintiff, who was injured in a collision while driving his automobile, it was the duty of the trial court to sustain a motion directing a verdict for defendant at the close of plaintiff's evidence.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action by Peter Redwelski against the Omaha & Council Bluffs Street Railway Company to recover for personal injuries sustained by the plaintiff when his automobile collided with a repair truck of the defendant. The trial court sustained defendant's motion for a directed verdict in its favor and dismissed the plaintiff's action, and the plaintiff appeals.
Judgment affirmed.
Gordon Diesing, of Omaha, for appellant.
Kennedy, Holland, DeLacy & Svoboda, of Omaha, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.
This is an action for personal injuries sustained by the plaintiff who was driving his own car and collided with a repair truck owned by the street railway company. At the close of the plaintiff's case, the trial court sustained defendant's motion for a directed verdict in its favor, and dismissed the plaintiff's action.
The assignments of error set out that the trial court was in error in refusing to submit the case to the jury, and that the dismissal of the case is contrary to the evidence and the law; that the court erred in passing upon the credibility of the witnesses, which is the sole duty of the jury, and thereby invaded the province of the jury.
This is a companion case to Blank v. Omaha & C. B. Street R. Co., Neb., 290 N.W. 464, which case was presented first to this court, Blank being a guest of the plaintiff at the time of the accident.
The accident happened at about 8 o'clock on the evening of February 26, 1938. The plaintiff was chief engineer of the Schulze Baking Company, and left his home in his 1934 Chevrolet car to make a trip to the bakery to give directions about heating the ovens. It was a dark, cloudy night, but his headlights, adjusted for city driving would shine about 50 feet ahead of his car. The trolley wire had broken, and was looped around a stalled street car, and a repair truck, with a tower from which workmen could reach the trolley, had arrived, and turned around in the intersection of Woolworth avenue and Twenty-fourth street, and headed back north up Twenty-fourth street, and was lengthwise of the street car tracks and parallel therewith, its left wheels being to the west of the west rail of the south-bound track. This truck had been engaged there for about 15 minutes. After its headlights were turned off, a man with a flashlight stood in front of the truck and gave orders to the repair crew on the tower of the truck, and directed traffic.
The plaintiff testified that he had full control of his car, was looking straight ahead, and that when his headlights disclosed the truck ahead of him he was scared and frightened, applied his brakes, and just then the truck's headlights flashed on and blinded him; that he turned his car to the right to avoid a head-on collision, and the left wheel and fender of the Chevrolet hit the left wheel and fender of the truck. Plaintiff testified that his brakes were in good condition, and also his lights. Plaintiff was knocked unconscious by the collision, and remained in a hospital for 16 days and six or seven weeks in his home with a fractured skull.
At the corner of this intersection of Twenty-fourth street and Woolworth avenue, there was a filling station on the southeast corner and a grocery store on the southwest corner. Der Merkley testified that he helped out at this filling station on the corner; that the tower repair truck and also the street car which was standing there, with the broken trolley wire around it, were both painted yellow. He testified that there was a light at the top of each of the three pumps at the filling station, and four lights around the building, and one floodlight on a pole out by the sidewalk, and all were lighted at the time of the accident that the arc light on the southwest corner was burning. He could see the men working on top of the tower of the truck; he could see the man 10 feet ahead of the truck when it was 15 or 20 feet north of the intersection, or a distance of 56 feet from where the witness...
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