Travinsky v. Omaha & Council Bluffs Street Ry. Co.
| Decision Date | 17 November 1939 |
| Docket Number | 30667. |
| Citation | 288 N.W. 512,137 Neb. 168 |
| Parties | TRAVINSKY v. OMAHA & COUNCIL BLUFFS STREET RY. CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
When one, being in a place of safety, sees and is aware of the approach of a moving vehicle in close proximity to him suddenly moves from the place of safety into the path of such vehicle and is struck, his own conduct constitutes contributory negligence more than slight in degree, as a matter of law, and precludes recovery.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action for damages for alleged wrongful death by Dora Travinsky personal representative of George Travinsky, deceased against the Omaha & Council Bluffs Street Railway Company, and John J. Monaghan. From an adverse judgment, the plaintiff appeals.
Judgment affirmed.
Where a pedestrian who was in a place of safety, and who saw and was aware of the approach of a street car in close proximity to him, suddenly moved from the place of safety into the path of the street car and was struck his conduct constituted contributory negligence of more than slight degree, as a matter of law, and precluded recovery for his death from street car company.
Anson H. Bigelow and Phillip F. Abboud, both of Omaha, for appellant.
Kennedy, Holland, DeLacy & Svoboda, of Omaha, for appellees.
Heard before SIMMONS, C. J., and EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ., and KROGER and ELLIS, District Judges.
This is an action for damages for alleged wrongful death.
Upon trial, at the close of plaintiff's evidence, the trial court sustained defendants' motion for a directed verdict and dismissed plaintiff's action. Motion for new trial was overruled and plaintiff brought this appeal.
The motion for directed verdict was predicated on the ground that plaintiff's evidence disclosed contributory negligence on the part of plaintiff's deceased more than slight, precluding plaintiff's recovery, and the disposition of the case by the trial court was upon that ground. This ruling of the trial court is assigned as error, and while there are other assignments, only the one requires consideration.
The evidence, in so far as it is necessary to set it forth in this opinion, may be summarized as follows: The accident producing death occurred at the intersection of Fifteenth and Chicago streets, in the city of Omaha. Chicago street runs east and west and Fifteenth street runs north and south. There are double street car tracks on Fifteenth street. The accident occurred in October, 1936, around 6 o'clock p m., it being sufficiently dark at the time so that the street light at the intersection was lighted and vehicles had their lights on. One of defendant tram company's cars was proceeding north on Fifteenth street on the north bound track which is the right hand or east track of the two tracks on that street. In the opinion of a pedestrian, who observed the car as it passed the first alley south of Chicago street, the car was then traveling at a speed of 35 miles an hour. He did not observe the car from that point on until after he heard the impact. A taxicab driver, who followed the car for some distance and estimated that it was about 200 feet ahead of him when it entered the intersection in question, testified that the car was going faster than his car and fixed his car speed at from 30 to 32 miles an hour. There was evidence of the distance required in which to bring the car to a stop after the impact which, it may be conceded, has some tendency to corroborate these estimates of speed. The only eyewitness of this fatal accident and the movements of the deceased prior to the impact was the motorman of the car involved, the defendant Monaghan. He testified that he brought the car into the intersection at a speed of from 10 to 15 miles an hour and that at that time it was drifting, that is to say, there was no power on. As he reached a point approximately the center of the intersection he saw the deceased step off the curb at the northwest corner of the intersection. The evidence indicates that immediately prior to stepping into the street he was proceeding on the sidewalk. Other evidence, including a plat of the intersection, indicates that the point where deceased stepped into the street was approximately 38 feet north and 30 feet west of the center of the intersection. The motorman further testified that immediately on stepping off the curb the deceased started to run and ran at an angle south and east from the point where he stepped into the street until he reached a point approximately in the center of the southbound car track, and that at some point in this movement he raised his hand as though to signal the car to stop for him. Incidentally the regular stopping place for street cars at this intersection was on the southeast corner of the intersection. The distance between the rails of each set of tracks is 5 feet and the distance between the inside rails of the two sets of tracks is also 5 feet. When the deceased reached the point above indicated, he stopped and lowered his hand. The motorman testified that when the deceased stopped he was between 3 and 6 feet northwest from the front of the car, the measurement being a diagonal one and including, of course, the distance which he was west of the car as well as the distance he was north of the car. The motorman fixed the latter distance at a " couple of feet." ...
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