Sgroi v. Yellow Cab & Baggage Co., No. 28429.

• Court: Supreme Court of Nebraska
• Writing for the Court: GOOD
• Citation: 124 Neb. 525,247 N.W. 355
• Decision Date: 10 March 1933
• Docket Number: No. 28429.
• Parties: SGROI v. YELLOW CAB & BAGGAGE CO., INC.

124 Neb. 525
247 N.W. 355

SGROI
v.
YELLOW CAB & BAGGAGE CO., INC.

No. 28429.

Supreme Court of Nebraska.

March 10, 1933.

Syllabus by the Court.

1. The existence of negligence and contributory negligence in an action for personal injuries is, ordinarily, a question of fact, and where the evidence in relation thereto is such that minds may reasonably reach different conclusions as to their existence, such question should be submitted to the jury.

2. An instruction on measure of recovery, under statutory comparative negligence rule, which tells the jury: “Plaintiff's damages must be reduced in the proportion that her contributory negligence bears to the whole amount of damages sustained,” is erroneous.

Appeal from District Court, Douglas County; Foster, Judge.

Action by Louise Sgroi against the Yellow Cab & Baggage Company, Incorporated. Judgment for plaintiff, and the defendant appeals.

Affirmed.

[247 N.W. 355]

Kennedy, Holland & DeLacy, of Omaha, for appellant.

Howell, Tunison & Joyner and Ray Lones, all of Omaha, for appellee.

Heard before GOSS, C. J., and ROSE, DEAN, GOOD, EBERLY, DAY, and PAINE, JJ.

GOOD, Justice.

This is an action to recover damages for personal injuries, in which plaintiff recovered a judgment. Defendant has appealed.

Plaintiff was a passenger on a street car traveling north on Sixteenth street in the city of Omaha. The street car stopped when it reached Howard street, and plaintiff alighted from the front end of the street car and started to walk east to the sidewalk. While so doing, she was injured in a collision with one of defendant's taxicabs going north and passing the street car on the east side thereof. At the place where plaintiff alighted there was a safety zone for the protection of persons alighting from or waiting to enter street cars stopping at that point.

Plaintiff charged defendant with negligence in operating the taxicab without having it under control; in disregarding the rights and safety of persons upon the street at said place; in failure to give any signal or other warning of its approach at the time and place of the collision, and in that the taxicab was suddenly and negligently driven at a speed in excess of 12 miles an hour and at a speed which was greater than reasonable and proper, having regard for the traffic and use of the street and prevailing conditions. In its answer defendant admitted that there was a collision in which plaintiff received some injuries, but charged that plaintiff walked into the side of the taxicab, and that she was guilty of contributory negligence.

At the close of plaintiff's testimony and again at the close of all the evidence,...