Wilson v. Omaha & Council Bluffs Street v. Company

• Citation: 157 N.W. 626,99 Neb. 693
• Decision Date: 15 April 1916
• Docket Number: 18588
• Parties: AMY L. WILSON, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Supreme Court of Nebraska

157 N.W. 626

99 Neb. 693

AMY L. WILSON, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 18588

Supreme Court of Nebraska

April 15, 1916

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE, Affirmed.

AFFIRMED.

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

W. W Bulman and Sutton, McKenzie, Cox & Harris, contra.

OPINION

FAWCETT, J.

From a judgment of the district court for Douglas county, awarding plaintiff damages for personal injuries, defendant appeals.

The facts, briefly stated, are: Plaintiff was a passenger upon defendant's electric street car. She desired to leave the car at Sixteenth street and Capitol avenue. When the car came to a stop at that point a number of passengers alighted. Plaintiff had left her seat and was walking toward the exit a little in the rear of the other passengers who were alighting. When she was within some three or four feet of the exit door, the conductor, who was standing upon the back platform facing the rear and collecting fares from passengers who were boarding the car, signaled the motorman to go ahead. The car at once started forward, whereupon plaintiff said to the conductor: "Let me off, please." The conductor evidently heard her request, and, turning about, saw that she desired to "get off. " He thereupon gave the signal of one bell to stop the car. Plaintiff alleges that "the motorman in charge of said car caused the same to be brought to an unusually sudden, violent, instant and abrupt stop; that so abruptly and suddenly was the movement of said car stopped that the plaintiff was thrown to the floor of said car with great force and violence, receiving and sustaining the injuries complained of." The petition also charged negligence on the part of the conductor in starting the car before plaintiff had time to alight, but the trial court withdrew that issue from the jury, and submitted only the allegation of negligence on the part of the motorman.

Defendant presents and discusses five assignments of error which we will consider in their order.

1. It is argued that, instead of giving instruction No. 3, the court should have directed the jury to return a verdict for defendant, for the reason that the evidence was insufficient to sustain the charge of negligence submitted by that instruction. Instruction No. 3 reads as follows:

"There is no evidence in this case sufficient to justify or authorize you to find that the conductor of the car on which plaintiff was riding, at or prior to the happening of the accident to her, was guilty of doing or failing to do any act or thing that would constitute negligence on his part. The only actionable negligence alleged in the petition of plaintiff which you are to consider is the allegation that 'the motorman in charge of said car caused the same to be brought to an unusually sudden, violent, instant and abrupt stop; that so abruptly and suddenly was the movement of said car stopped that the plaintiff was thrown to the floor of said car with great force and violence, receiving and sustaining the injuries complained of.' You are further instructed that you would not have the right in this case to declare or determine that the defendant was guilty of negligence in any other respect."

The testimony of the witnesses as to the manner in which the car stopped is conflicting. The motorman and conductor and two or three gentlemen who were standing upon the rear platform all testified that there was nothing unusual in the manner in which the car came to a stop. The testimony of plaintiff tends strongly to show that the stopping was unusually sudden. She testified that it caused a "violent rocking sensation; " that it rocked first toward the south and then toward the north; that the rocking was a "violent motion throwing me forward and backward;" that it first threw her south and then north; that when she went back the last time it threw her down violently and suddenly; that she did not have time to reach any of the handrails; that she had braced herself with her feet, but did not know the car was going to stop that way; that she was thrown about four feet back from where she was standing. The plaintiff is not corroborated by the testimony of any witness, but it is argued by her counsel that the doctrine of res ipsa loquitur applies; that the manner in which she was thrown to the floor furnishes corroboration of her testimony. When we consider, in addition to this, that the motorman and conductor were men accustomed to the lurching of cars, and that the other witnesses were men who were standing upon the rear platform, leaning against the side of the rear vestibule, the jury may well have believed that they were not as competent to testify as to the actual manner of the stopping as plaintiff. However that may be, they have found this important issue, which was properly submitted to them by the trial court, in favor of the plaintiff, and we cannot say that her testimony, when compared with the testimony of the witnesses against her, is so unreasonable as to warrant us in setting aside the verdict on the ground that the evidence is insufficient to show negligence on the part of the defendant. Numerous authorities from other states, notably Massachusetts, are cited by defendant, which, if followed by us, would, under the facts shown, relieve the defendant from the charge of negligence in stopping the car as was done. Those cases go to the extent of holding that it is not enough to show that there was a sudden jerk of the car, but it must affirmatively appear that the jerk was extraordinary or attributable to a defect in the track, an imperfection in the car or apparatus, or to a dangerous rate of speed, or to unskillful handling. This court has never gone so far as that. On the...