Stewart v. Omaha & C. B. St. Ry. Co.

Decision Date09 January 1911
Docket NumberNo. 16,748.,16,748.
Citation88 Neb. 209,129 N.W. 440
CourtNebraska Supreme Court
PartiesSTEWART v. OMAHA & C. B. ST. RY. CO.

OPINION TEXT STARTS HERE

Syllabus by the Court.

A street railway company and an ordinary traveler have equal rights of travel on the street of a city but each must observe due care to avoid accidents, taking into account the fact that the street car is confined to the track while pedestrians have freedom of movement.

The employés in charge of the operation of a street car are held to great caution when crossing a street intersection at a point where a car upon the opposite track is, or has been, very recently discharging passengers. The motorman should keep a sharp lookout, give ample and timely warning of the approach of the car, and have it under such control that it can be readily stopped if necessary.

Questions as to whether a bell was sounded, or as to whether the rate of speed of the car was excessive where the evidence is conflicting, should be submitted to the jury.

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

Action by Robert A. Stewart against the Omaha & Council Bluffs Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. J. Connell and Jno. L. Webster, for appellant.

H. C. Brome and Clinton Brome, for appellee.

LETTON, J.

A statement of the evidence given at a former trial of this case may be found in the opinion in Stewart v. Omaha & Council Bluffs St. Ry. Co., 83 Neb. 97, 118 N. W. 1106. At the second trial, the result was a verdict for the plaintiff, from which defendant has appealed. At this trial much of the testimony taken at the former trial was read and some other testimony adduced. The evidence on behalf of the plaintiff as to the distance he was carried and the place where the north-bound car stopped is practically the same as at the former trial. His testimony now is that the car from which he alighted was from 10 to 20 feet away when he looked to the south, while at the former trial he said he thought it was about 10 feet. As to this he was not positive, however. A plat is in evidence which shows that, if he had looked to the south from the point where he alighted at a time when the south-bound car was 10 feet away, he would have had an unobstructed view of the other track for a long distance, except so far as his view was cut off by the south-bound car.

The plaintiff's testimony is that in his opinion the car that struck him was moving at the rate of about 20 miles an hour. The motorman and other employés of defendant testify that the north-bound car was moving at the rate of about 8 miles an hour when the plaintiff was struck, and that he was struck when he was about the middle of the intersection. On the former appeal we held that there was sufficient evidence that the car was being operated at a dangerous rate of speed, and of negligence in failing to give sufficient warning of its approach to require the submission of those questions to a jury, and we further held that the evidence of contributory negligence was not clear enough to justify the court in directing a verdict for the defendant on that account.

The defendant claims that new and additional evidence was produced at the trial destructive of any inference that the plaintiff had used reasonable prudence in stepping in front of the approaching car in the manner he did, and also that the evidence fails to show any negligence on its part. A large number of cases have been collected through the industry of counsel which hold, in substance, that under facts somewhat similar to those in this case plaintiff will be held as a matter of law to be guilty of such negligence as will preclude a recovery. Whatever the rule in some states may be with respect to the rights of pedestrians and street cars upon the streets of a city, the law in this state is settled that neither the street car nor the pedestrian has any priority or privileged right over the other, that an electric street railway company and an ordinary traveler upon the street are required to observe an equal degree of care to prevent accidents, and that neither has a right of way superior to that of the other. Omaha St. Ry. Co. v. Cameron, 43 Neb. 297, 61 N. W. 606;Mathiesen v. Omaha St. Ry. Co., 3 Neb. (unof.) 747, 97 N. W. 243;Omaha St. Ry. Co. v. Matheisen, 73 Neb. 820, 103 N. W. 666;Olney v. O. & C. B. St. Ry. Co., 78 Neb. 767, 111 N. W. 784. We agree with counsel for defendant that under ordinary circumstances one who negligently attempts to cross a street railway track in front of an approaching car cannot recover for injuries caused by a collision therewith, unless those in charge willfully or wantonly produce the collision, or fail to exercise ordinary care to prevent the accident after knowledge of the probable danger. Harris v. Lincoln T. Co., 78 Neb. 681, 111 N. W. 580;Wood v. Omaha & C. B. St. R. Co., 84 Neb. 282, 120 N. W. 1121, 22 L. R. A. (N. S.) 228. But the crucial question is whether or not the person injured negligently attempted to cross. We find no evidence in the record which leads us to change the conclusion we arrived at on the former appeal, that under the circumstances of this case the question of whether the plaintiff was negligent or not was a matter for the jury to determine. We think that the employés in charge of a street car should be held to great caution when crossing a street intersection at a point where a car upon the opposite track is or very recently has been discharging passengers, that the motorman should keep a sharp lookout, give ample and timely warning of the approach of the car, and have it under such control that he can promptly stop it upon the appearance of danger. This seems to be the more humane and modern doctrine. We see no reason to adopt one which will in any degree relax the care and caution of employés engaged in the operation of such dangerous instrumentalities as electrically operated street railways within the busy streets of a city.

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