Wilfong v. Omaha & Council Bluffs Street Ry. Co.
| Decision Date | 20 September 1935 |
| Docket Number | 29281. |
| Parties | WILFONG v. OMAHA & COUNCIL BLUFFS ST. RY. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " In a law action, where negligence is an issue and the evidence respecting it is in conflict, the question is for the jury." Campbell v. Slater, 127 Neb. 231 254 N.W. 897.
2. " Although a party may have negligently exposed himself to an injury, yet, if the defendant after discovering his exposed situation negligently injures him, or is guilty of negligence in not discovering his dangerous position until too late, and the plaintiff is because thereof injured, he may nevertheless recover." Omaha Street R. Co. v Martin, 48 Neb. 65, 66 N.W. 1007.
3. In view of the self-executing provisions of section 13, art. 1 of our Constitution, courts of this state must be open at all times to afford a remedy by due course of law for any injury done " a party" in his person, without denial or delay, and without reference to and wholly unaffected by the subsequent death of the wrongdoer or the party wronged. Therefore, an action for damages commenced by an administrator, after the death of his intestate, for pain and suffering inflicted upon such deceased is maintainable.
4. Where the error relied upon is an erroneous instruction of the trial court directing the jury to consider certain claims for damages as part of the first cause of action instead of as part of the second cause of action, wherein they were properly set out, held, under the facts in this case, to be an error or defect in the proceedings which did not affect the substantial rights of the complaining party and therefore to be disregarded.
Appeal from District Court, Douglas County; Sears, Judge.
Action by Edward Wilfong, administrator of the estate of Edward Wilfong, Jr., deceased, against the Omaha & Council Bluffs Street Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Instruction on contributory negligence held properly refused where case was submitted to jury on sole question of last clear chance.
Kennedy, Holland & De Lacy, of Omaha, for appellant.
S. L. Winters, of Omaha, for appellee.
Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and REDICK, District Judge.
This is an action by Edward Wilfong, administrator of the estate of Edward Wilfong, Jr., deceased, against the Omaha and Council Bluffs Street Railway Company for negligently causing the death of his son and intestate. The deceased was nine years old at the time of his death, which took place in Omaha, Nebraska, approximately five hours after the occurrence of the accident.
The petition sets up two causes of action, viz.: The first for $10,000 on account of " physical pain and suffering which said deceased sustained from the time he was injured" by the impact of defendant's street car " until the time of his death; " the second, for $15,608 under the provisions of sections 30-809 and 30-810, Comp. St. 1929 (Lord Campbell's Act.) However, the second cause of action also sets forth that the next of kin have incurred for the deceased a hospital bill in the sum of $34; a doctor's bill of $200; and a funeral bill of $374, all necessitated by the injuries inflicted upon the deceased by the defendant.
The defendant denied generally the allegations consti tuting plaintiff's first cause of action; challenged the right of plaintiff to recover thereon, for the reason that no action was commenced thereon in the lifetime of the deceased; and also alleged " that said deceased was of the age of 9; that he and other children were playing in the park on the east side of the company's tracks, and that the said child ran up a steep bank and out onto the company's track in front of the oncoming street car at a time when it was impossible to stop said car," and alleged that the injuries to said minor " were the direct and proximate result of his own negligence," and that his negligence " was more than slight and was the proximate cause of his injury and subsequent death."
The defendant, in answer to the second cause of action, in effect, denied all allegations of negligence charged, and pleaded contributory negligence on part of the deceased.
By appropriate reply plaintiff joined issues.
On such issues there is a sharp conflict in the evidence. There is no question that the injuries causing the death of Edward Wilfong, Jr., were occasioned by a street car of the defendant on August 13, 1932, as it was then being operated north from Martha street along the east side of Thirty-second street, across Creighton boulevard, and along the west side of Hanscom Park, in the city of Omaha. Near a point where the boundary lines of Francis street, if extended eastward, would intersect with Thirty-second street, the deceased was struck by this car, knocked down, and carried by it some 38 feet. The injuries inflicted caused his death some four and a half to five hours thereafter. Immediately east of the street car tracks at the scene of the accident was a row of thick weeds and also a dense growth of trees along the west side of Hanscom Park. The motorman of the car which came in contact with deceased testified on cross-examination as follows:
" Q. And your car went north at about a rate of 18 miles an hour? A. I made a mistake about the 18 miles an hour.
Q. You did? A. I sure did, it was 10 or 12 miles an hour at the most.
Q. What made you change it? A. I don't know. * * *
Q. I mean in an emergency case like this, how soon could you make a stop with your emergency? A. I don't think you could stop it in more than 30 or 35 feet. It was a little down grade."
He also testified that a platform situated near the scene of the accident was a " regular stop" ; that he was in the habit of keeping a lookout for children there, and that his orders required this. On his direct examination he had previously testified as follows:
There is partial corroboration of the foregoing testimony by other witnesses for the defendant.
Plaintiff's witness, Helen Thomas, a girl 14 years of age, then attending Central High School in Omaha, testified that she resided at 2207 South Thirty-Second street; that, in the forenoon of the day of the accident, Bobbie Bock, she, and Edward Wilfong, Jr., were playing " follow-the-leader" in Hanscom Park, and were, in the order named, playing immediately east of the street car tracks when Edward " started south down the tracks," and went south on the track a distance of " about 55 feet." She was watching him all the time, and then Edward saw the street car coming and turned around and went about 15 feet north, and in his excitement he put up his hands. This witness stated: " The street car hit him after he got about 15 or 20 feet" north. " I yelled, ‘ Edward is hit,' " and " ran as fast as I could to Mrs. Wilfong's house."
If this evidence is to be believed, the deceased was in plain view of the oncoming street car during the time he was passing over a distance of from 70 to 75 feet, and obviously in a place of danger. This version of the affair also finds corroboration in the record before us.
The squarely conflicting evidence presented was resolved by the trial jury in favor of plaintiff.
" In a law action, where negligence is an issue and the evidence respecting it is in conflict, the question is for the jury." Campbell v. Slater, 127 Neb. 231, 254 N.W. 897.
The trial court submitted the case to the trial jury under the humanitarian rule, or the " last clear chance" doctrine. The last clear chance doctrine in this state, as applied to the situation here presented, is that, when a street car runs against a person causing his injury, liability arises, when the peril is discovered by the motorman, or by the exercise of ordinary or reasonable care and caution could have been discovered, in time to have avoided the injury. See Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N.W. 531; Krummack v. Missouri P. R. Co., 98 Neb. 773, 154 N.W. 541; Lucas v. Omaha & C. B. Street R. Co., 104 Neb. 432, 177 N.W. 786; Wilson v. Union P. R. Co., 107 Neb. 111, 185 N.W. 406; Hanford v. Omaha & C. B. Street R. Co., 113 Neb. 423, 203 N.W. 643, 40 A.L.R. 970; Porto Rico Railway Light & Power Co. v. Miranda (C. C. A.) 62 F.(2d) 479; Allen v. Des Moines R. Co., 218 Iowa, 286, 253 N.W. 143.
It is to be remembered that the deceased was but nine years of age and that the scene of the accident was located at a place known to be frequented by children, or at least the orders which were admittedly received by the motorman from his employer contemplated such a situation. Under such conditions a greater degree of diligence was required than at places where danger is not so apparent. See Mitchell v. Tacoma Railway & Motor Co., 9 Wash. 120, 37 P. 341; Bergen County Traction Co. v. Heitman's Adm'r, 61 N. J. Law, 682, 40 A. 651; Sample v. Consolidated Light & Railway Co., 50 W.Va. 472, 40 S.E. 597, 694, 57 L.R.A. 186; Sacca v. Omaha & C. B. Street R. Co., 98 Neb. 73, 152 N.W. 315; Schrage v. Miller, 123 Neb. 266, 242 N.W. 649; Allen v. Des Moines R. Co., 218 Iowa, 286, 253 N.W. 143; ...
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