Schmidbauer v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 13 March 1920
• Docket Number: 20618
• Citation: 177 N.W. 336,104 Neb. 250
• Parties: JOSEPH SCHMIDBAUER, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

177 N.W. 336

104 Neb. 250

JOSEPH SCHMIDBAUER, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 20618

Supreme Court of Nebraska

March 13, 1920

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

John L Webster and W. R. King, for appellant.

Murphy & Winters, contra.

MORRISSEY C. J. DAY, J., not sitting.

OPINION

MORRISSEY, C. J.

Plaintiff sues for injuries received when the wagon which he was driving was struck by one of defendant's cars in the city of Omaha. He claims to have been driving south on the west side of Twelfth street, and before he approached defendant's tracks at the intersection of Twelfth and Douglas streets he looked to see if the track was clear and saw no car approaching. His team and the front end of the wagon, which was 30 feet in length, passed safely over, when the rear end of the wagon was violently struck by one of defendant's cars. Plaintiff was thrown to the pavement, suffering many cuts, bruises, and fractures. He has lost the hearing in one ear, and one leg is shortened one and a half inches. He has endured great pain and suffering, and, at the time of the trial, was still said to be suffering pain. He is permanently crippled, and appears to be wholly incapacitated from ever again performing manual labor.

Upon trial to a jury, there was a verdict in favor of plaintiff for $ 17,500. The district court ordered a remittitur of $ 7,500. Defendant appeals from the judgment entered, and plaintiff prosecutes a cross-appeal from the order of remittitur, under the provisions of chapter 247, Laws 1915.

Three general allegations of negligence are charged: (1) Defendant failed to sound a gong or bell; (2) the car was operated at an excessive rate of speed; and (3) defendant's servants in charge of the car, who saw, or in the exercise of ordinary care should have seen plaintiff in a place of danger, negligently failed to check the speed of the car or otherwise exercise due care to avoid the collision with plaintiff's wagon. There is more or less conflict in the evidence of the witnesses who saw the collision. Defendant claims plaintiff was driving parallel with the track, when he negligently changed his course and drove in front of the approaching car. There is evidence on behalf of defendant that the gong was sounded. But the mere sounding of the gong, unless done at a time to give reasonable warning to a person exercising ordinary care, would not be sufficient. There is conflict as to the speed at which the car was traveling and as to the distance it traveled after the impact. On the question of the last clear chance there appears to be less ground for dispute than on the other questions of alleged negligence. The weight of the evidence shows that plaintiff was driving slowly across defendant's tracks. His team and the front end of his wagon passed safely over. The motorman, by keeping a proper lookout, could have seen defendant's horses when they first stepped upon the track. And, if his car was under proper control, in the exercise of due diligence, he would have been able to have brought his car to a stop before coming in contact with plaintiff's wagon. It is hard to escape the conclusion that the car was operated at an excessive rate of speed, or that the motorman did not exercise due diligence in bringing the car to a stop.

Taking up defendant's assignments of error in their order, the first question to determine is the admissibility of the evidence of certain witnesses for plaintiff. One Gremore testified as to the speed at which the car was traveling immediately before the collision. Defendant contends that this evidence was erroneously admitted because, as is said in the brief, Gremore did not see the car until it was within 35 feet of him, and it was coming directly toward him. It is claimed that he had neither...