Sgroi v. Yellow Cab & Baggage Company, Inc.

• Decision Date: 10 March 1933
• Docket Number: 28429
• Citation: 247 N.W. 355,124 Neb. 525
• Parties: LOUISE SGROI, APPELLEE, v. YELLOW CAB & BAGGAGE COMPANY, INC., APPELLANT
• Court: Nebraska Supreme Court

247 N.W. 355

124 Neb. 525

LOUISE SGROI, APPELLEE, v. YELLOW CAB & BAGGAGE COMPANY, INC., APPELLANT

No. 28429

Supreme Court of Nebraska

March 10, 1933

APPEAL from the district court for Douglas county: CHARLES E FOSTER, JUDGE. Affirmed.

AFFIRMED.

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.

Kennedy, Holland & DeLacy, for appellant.

Howell, Tunison & Joyner and J. R. Lones, contra.

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

OPINION

GOOD, J.

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, defendant moved for a directed verdict, which the court denied. Defendant contends that the evidence fails to establish actionable negligence on the part of defendant, and that, in any event, it establishes that plaintiff was guilty of more than slight negligence in comparison, and for those reasons its motion should have been sustained.

Where, from the evidence before the jury, different minds might reasonably draw different conclusions as to defendant's liability, it would be error to direct a verdict for defendant. Suiter v. Park Nat. Bank, 35 Neb. 372, 53 N.W. 205; Thomson v. Shelton, 49 Neb. 644, 68 N.W. 1055; Ogden v. Sovereign Camp, W. O. W., 78 Neb. 806, 113 N.W. 524; Oleson v. Oleson, 90 Neb. 738, 134 N.W. 648; Morrissey v. Wharton, 98 Neb. 544, 153 N.W. 564; Sindelar v. Hord Grain Co., 116 Neb. 776, 219 N.W. 145.

We have read all the evidence and, from a consideration thereof, have reached the conclusion that the evidence is such as to bring it within the announced rule. The court properly refused to direct a verdict for defendant.

Defendant complains that the court erred in submitting to the jury the question of the speed of the taxicab. The only direct evidence as to the rate of speed at which the taxicab was being driven was to the effect that it...