Wood v. Omaha & Council Bluffs St. Ry. Co.
| Decision Date | 24 April 1909 |
| Docket Number | No. 15,669.,15,669. |
| Citation | 84 Neb. 282,120 N.W. 1121 |
| Court | Nebraska Supreme Court |
| Parties | WOOD v. OMAHA & COUNCIL BLUFFS ST. RY. CO. |
In a suit against a street railway company for personal injuries, plaintiff is chargeable with contributory negligence, and defendant is not liable for damages, where the petition shows plaintiff was standing between the rails at a street intersection on a cross-walk at night waiting for the car which struck him; that he was only required to take one step to prevent the impact; that the car was equipped with a headlight; that he saw it 30 feet away, and could have seen it a long distance; that there was nothing to indicate his inability to use his senses in avoiding danger; and that defendant stopped its car with the rear end at the cross-walk where he was standing, the motorman under such circumstances having the right to assume, until plaintiff's danger became apparent, that he would step off the track.
A person who waits for a street car at a proper cross-walk, sees the car coming, and is struck and injured by it through his own negligence cannot recover damages on the sole ground that the motorman failed to sound the gong.
Appeal from District Court, Douglas County; Sears, Judge.
Action by Orlando S. Wood against the Omaha & Council Bluffs Street Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.L. D. Holmes, for appellant.
John L. Webster, W. J. Connell, and Victor McLucas, for appellee.
An electric passenger car operated by defendant on its street railway in Omaha struck and injured plaintiff, and this suit was brought by him to recover damages in the sum of $10,000. A general demurrer to the petition was sustained by the trial court. Plaintiff refused to plead further, and stood upon his petition. A dismissal of the case followed, and plaintiff appeals.
The only question presented is the sufficiency of the petition to state a cause of action. The allegations material to this inquiry are:
“(1) The defendant herein is a corporation duly organized and engaged in the business of operating street cars in the city of Omaha and other places for the purpose of carrying passengers.
(2) That on October 17, 1905, the plaintiff, desiring to take the electric car of the defendant going east on California street at the east side of Thirtieth street and at the intersection of said streets, passed from the north side of said California street south and across the tracks of the said defendant until he reached a point upon said crossing, as he supposed, south of the tracks of the said defendant; that the night was dark and the ground was muddy, and he was unable to see the tracks of the said defendant or the said cross-walk, but was standing on said cross-walk, as he afterward ascertained, about six inches north of the south rail of the said south track of the defendant, while waiting for said car, instead of south of said track, as he intended and supposed; that while he was so standing one of defendant's electric cars approached from the west coming over the hill west of Thirtieth street, and was running at a very great rate of speed; that plaintiff could not and did not discover that he was inside of said track as above alleged until the car was within about 30 feet of the place where he was standing; that he then discovered for the first time that he was in a position of danger, and immediately sprang toward the south to escape the car, but it was running so fast that it struck him before he could escape danger, and the car ran the full length of itself after it had struck him, and knocked him down before it stopped. Plaintiff further alleges that said car was provided with a headlight, and the motorman could have seen this plaintiff from his station on the car a long time before said car reached the place where plaintiff was standing, and could have stopped the car after discovering plaintiff's peril and before it struck the plaintiff had he used reasonable diligence, but wrongfully neglected to ring the bell or give any warning to this plaintiff, and wrongfully and negligently ran said car against this plaintiff. Wherefore the plaintiff says that said defendant wrongfully and negligently injured and wounded the said plaintiff without negligence on his part. Plaintiff further alleges that said car was running swiftly eastward at the intersection of Thirtieth and California streets, and the motorman carelessly and negligently caused said car to be running swiftly at that point, and wrongfully and negligently failed to have said car under his control, and thereby wrongfully and negligently caused said car to run against said plaintiff, and to bruise and wound him, without negligence on his part.”
In the argument to sustain the petition, plaintiff insists that his being on the street railway track was not negligence as a matter of law, and that he did all a reasonably prudent person could do to protect himself from injury. The trial court took a different view of the controversy. The...
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