Stewart v. Omaha & Council Bluffs Street Railway Company
| Decision Date | 17 December 1908 |
| Docket Number | 15,390 |
| Citation | 118 N.W. 1106,83 Neb. 97 |
| Parties | ROBERT A. STEWART, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.
REVERSED.
Brome & Burnett, for appellant.
John L Webster and W. J. Connell, contra.
ROOT C. FAWCETT and CALKINS, CC., concur.
Action for damages because of the alleged negligent operation of a street car whereby plaintiff was injured. The trial judge directed a verdict for defendant, and plaintiff appeals.
Plaintiff's place of business, in January, 1904, was located at the southeast corner of the intersection of Tenth and Howard streets in the city of Omaha. Howard street runs east and west, Tenth street north and south. Each street is 100 feet in width, and Tenth street is on an upgrade toward the north. The sidewalks on each side of said streets are 20 feet in width. Defendant maintains and operates a double track street railway on Tenth street. North-bound cars run over the eastern track, and south-bound cars over the western line. The evidence does not accurately show the distance between said tracks, but approximately they are from two to four feet apart. Defendant's cars stop at the far crossings for the purpose of receiving and discharging passengers. The Union passenger depot and the Burlington station are located on Tenth street, south of Howard. Several of defendant's car lines converge on Tenth street, and its cars pass to and fro thereon at frequent and irregular intervals, so that any one familiar with the situation at said intersection might reasonably expect a car to pass said point at any time during the day or early evening. Plaintiff had resided in Omaha for some two years preceding the accident, and was familiar with all of the aforementioned facts. It was cold, but clear, the night of the accident, with some snow on the ground, and, with the aid of the lights maintained on the streets and in the adjacent buildings, one could discern objects for a considerable distance. Plaintiff was then about 52 years of age, and in the possession of good eyesight and hearing. Plaintiff had occasion to go to his office about 8 o'clock in the evening, and rode south on defendant's car on Tenth street to said intersection, and got off the car on the west side of the western track and about 8 feet south of the Howard street curb line. Giving plaintiff's own testimony and that of his witnesses the most favorable construction, it appears that, as he stepped down to the street from the car, he placed his hands in his pockets, turned, facing southeast, and looked south to ascertain whether a north-bound car was near at hand; that he remained in that attitude for an instant, during which time the south-bound car had moved about 10 feet; that he did not hear any signal or noise to indicate that a car was coming north on the eastern track, nor did he see such a car. He then walked directly east across the first track, over the space between the two lines of railway, and across the west rail of the east track, at which point he noticed the headlight of a north-bound street car about 20 feet distant, and running at the rate of 20 miles an hour. At just that instant the motorman rang the gong, and the car collided with him. Plaintiff was caught on the car fender and carried or shoved some distance, and finally thrown onto the street about the middle of Howard, and the car was stopped so that the rear platform was parallel with his body as it laid in the street. Plaintiff admitted that he did not look south after he started to cross defendant's railway. There is no testimony in the record to corroborate plaintiff concerning the speed of the car, nor any evidence to indicate the distance that a car would move before it could be stopped if it was running at the rate of 20 miles an hour at said point. The record does not disclose any evidence of municipal regulations or rules of the defendant concerning the speed and methods of control of its cars, and but little to show the precautions taken by defendant's employees to warn the public at crossings of the approach of such cars. Plaintiff testified that the motorman in charge of the north-bound car did not ring the gong until the car was very close to him, and in this there is some slight corroboration from one other witness. Plaintiff further appeared to have been somewhat preoccupied at the time with the consideration of business of importance to himself, which he expected to transact at his office that evening. If from the foregoing state of facts we can say, as matter of law, that plaintiff was guilty of contributory negligence, the direction of the learned district judge was right, otherwise the judgment must be reversed.
A pedestrian traveling the streets of a city is not held to the same degree of care and watchfulness in crossing an electric road operated for local passenger traffic as he would be if crossing an ordinary railroad. In a qualified sense the rights of the railway company and that of the footman are equal in the use of the street, but consideration must be given the fact that cars are confined to a track and cannot be turned to either side; that street railway companies are permitted to use the streets for rapid transit and for the purpose of facilitating public travel, and that the speed of their cars cannot be checked instantly or within the same space of time as can the individual control his movements. The persons in...
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