Tyler v. Hoover
| Decision Date | 18 October 1912 |
| Docket Number | 16,617 |
| Citation | 138 N.W. 128,92 Neb. 221 |
| Parties | EMMA C. TYLER, APPELLEE, v. A. L. HOOVER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.
REVERSED.
Hall & Bishop, for appellant.
Charles O. Whedon, contra.
This is an appeal by the defendant from the judgment of the district court for Lancaster county. The plaintiff brought an action to recover damages for personal injuries alleged to have been caused by the careless, negligent and unlawful manner in which the appellant, on the 19th day of July, 1908, ran, handled, and managed an automobile, so that, as alleged in the petition, it struck and overturned the carriage in which the plaintiff was then riding with her husband, son and daughter, and threw the plaintiff, with violence, out of said carriage upon a paved street in the city of Lincoln, and against the iron inlet guard to the city sewer, severely lacerating the plaintiff's right ear and scalp and bruising and wounding her, and thereby causing her physical pain and mental suffering, and rendering her unable to perform her house-hold duties, and putting her to expense in procuring medicines, physicians and nurses. The petition also alleged that the defendant was running said automobile on the left side of the street at the rate of more than 12 miles an hour, and that he gave no sound or warning as he approached the intersection of Eleventh and L streets, as required by rules 2 and 7 of the General Revised and Consolidated Ordinances and Special Ordinances of Lincoln, Nebraska, being a part of chapter 120 of said ordinances. The answer admits the collision, but alleges that the horse attached to the carriage was wild, fractious and unsafe, and that the driver, who was the appellee's son, was unable to manage and control him, and that the horse took fright and ran into the automobile at the intersection of Eleventh and L streets, in Lincoln, and that the automobile, which before that time had been running at a rate of speed not to exceed 3 or 4 miles an hour as it approached said intersection from the north on Eleventh street, being under a complete state of control, was at once slowed up and was standing still when run into by the plaintiff's horse and carriage, and that the horse and carriage left the car after running into it, and that the carriage upset a short distance east of the point of collision, and that the injuries resulting therefrom were caused by the wild and fractious character of the horse and the carelessness and negligence of the driver and his inability to handle and control the horse, and that the appellant used every care and precaution possible, and in no way contributed to the injuries; that the plaintiff, by reason of the vicious character of the horse and the carelessness and negligence of the driver, who was her son, and his inability to manage the horse, caused the injuries complained of. The reply was a general denial of new matter in the answer. Appellant claims that the evidence fails to prove the cause of action, and attempts to show that the injuries sustained were so sustained because the horse was vicious and unmanageable, and because the plaintiff's driver was unable to control him. Errors at the trial are also alleged.
The horse and carriage were going east on L street at the time the automobile was going south on Eleventh street. The son of the appellant, who had gone to the depot for his mother, and who was driving the family horse and carriage, puts the horse and carriage, by his testimony, half way across Eleventh street at the time he first saw the automobile coming along Eleventh street from the north, and then distant from the carriage he was driving about 400 feet. He was driving on a trot. As Eleventh street is 70 feet between curbs, he had only 35 feet to drive, if he went on straight ahead towards the east, before he would be across Eleventh street and out of the way of the automobile going south. According to his statement, the automobile had more than ten times as far to go as the horse and buggy before it would collide with them if they went straight east across Eleventh street. The husband of the appellee corroborates the son as to the whipping of the horse by the son, and he, by his evidence, puts the horse and carriage about two-thirds of the way across Eleventh street when he first saw the automobile coming, and it was then distant from him about 250 feet, according to his opinion. The daughter of the appellee was riding in the carriage, at the time of the collision, with her brother, at the left of him and on the front seat, and the father and mother were in the back seat of the carriage. The daughter, by her testimony, puts the carriage two-thirds of the way across Eleventh street when she first saw the automobile, which was then in front of the grocery store referred to by the father in his testimony, and about 250 feet north.
Mrs. Roy Young lived at 310 South Eleventh street, over Pfeiff's grocery store, north of the point of collision, and about one-half way between the alley and M street. She saw the automobile going south past her window. If the right hind wheel of the carriage struck the automobile, this could have been done, it would seem, by the carriage turning and going north-east with its right hind wheel next to the automobile. The latter theory is supported by the testimony of De Vore, Spain, Mrs. Herpolsheimer, Mrs. Hoover and the defendant, Dr. Hoover. The defendant, Dr. Hoover, corroborated the statement of Mrs. Young as to the speed of the automobile. He testified that he turned on the brake and stopped the car before the collision occurred, and just as the horse started towards him. Before that he was running slowly. He says that if the horse, attached to the carriage, had gone straight across Eleventh street he would have missed the car by from six to ten feet, but that the horse turned south on Eleventh street, and "all at once the horse wheeled around and made a lunge and came down at an angle as though he was going to plunge right into the car, and, as he got right up close to the car, then he swung right around to the left, kind of doubled around the car, and struck the car; and I had brought my car to a standstill, when his carriage struck me, and, as I say, that he kind of swung around the car, and then ran on--the distance was probably 30 or 35 feet--and the horse started off then a little to the right, again to the south, and there the carriage, it seemed to me, collided with the curb, and the horse went down, and the carriage upset and spilled them all out there." This tends to show that the frightened horse was unmanageable, and that he attempted to, and probably did, go north, and in that way brought the right hind wheel of the carriage in contact with the automobile on the west side of the automobile, and then went around the automobile, perhaps behind it, and turned and went south to the southeast corner of the intersection space of the two streets, where the carriage went down. It is in testimony that there were marks on the car.
Lottridge testified that the hind wheel of the buggy ran over the wheel of the automobile and that the buggy did not tip over until it struck the curbstone, which was about 35 feet from where it ran into the automobile. Leslie Keizer testified that when he first saw the automobile it was at the intersection of Eleventh and L streets, and going slow, and that the horse and buggy at first were going east on L street, and all at once the horse turned south on Eleventh street, and then that he turned around towards the automobile, and was going northeast at the time of the collision. He says that when the carriage struck the car it seemed to sway around to the south, and then hit the curb on the corner, and then the carriage turned over; that the right hind wheel of the carriage broke when it hit the curbing or basin. De Vore testified that the horse and carriage were going east on L street, and then that the horse turned south on Eleventh street, and then reared and turned around northeast towards the automobile as though he was going to run into it; that the appellant stopped the car, and the horse sprang around to the south; that the horse was rearing and plunging, and the carriage turned over, and the horse fell near the corner of Eleventh and L, and that the automobile was standing still when struck by the carriage; that the driver was trying to hold the horse, but did not have control of it, and that the horse was rearing and running. Mrs. Louise Herpolsheimer, the appellant's daughter, testified that she was in the automobile, and that the horse was going on a swift trot, and that as he reached the southwest corner of Eleventh and L he broke into a run; that the automobile had been slowed down and that the car was stopped when the horse broke and ran, and that the horse seemed to run straight for the car, and that when the carriage struck the car it was standing still; that the horse then went to the southeast corner, where he fell and the carriage upset; that the carriage did not upset when it struck the car; that the carriage struck the right front wheel of the car. The appellant's wife, Mrs. Della J. Hoover, testified that as the horse struck Eleventh street he made a turn as though going south, and then the driver suddenly lost control of him; that the husband slowed down the car, and that the carriage hit the car, and that the horse...
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