Wright v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 19 May 1917
• Docket Number: 19327
• Citation: 163 N.W. 151,101 Neb. 292
• Parties: EDGAR P. WRIGHT, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

163 N.W. 151

101 Neb. 292

EDGAR P. WRIGHT, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 19327

Supreme Court of Nebraska

May 19, 1917

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

Affirmed on condition.

John L Webster and William Ross King, for appellant.

Sutton McKenzie, Cox & Harris, contra.

OPINION

LETTON, J.

This is an action to recover damages for personal injuries. The plaintiff was a conductor in the employment of defendant, and was in charge of an electric street car at the time of the accident. At one end of the run the car was turned by means of what is known as a "Y." In this operation the car is backed over a switch track forming one side of the "Y." In June, 1914, about midnight, on a dark and rainy night, the trolley pole left the wire while the car was being switched. It was the duty of plaintiff to replace the trolley upon the wire by means of a rope attached thereto, which was also fastened to the car. The rope broke close to the upper end of the trolley pole as the pole sprang up. There was no street light near. As soon as the trolley left the wire the lights in the car went out. Plaintiff testifies that, as was his duty, he went upon the top of the car to release the trolley pole and place it upon the wire; that he had never been upon the top of the car for this purpose at this point; that he had been instructed before he began to work and shown how to do this by an old conductor assigned for the purpose by the defendant; that he was told that the wires were not within striking distance of his head, and that, even if one did strike his head, there was no danger as long as he was standing on the top of the car; that he was told that, when the rope broke and he had to go on the top of the car, it was his duty to push the trolley pole against the wire so as to move the car forward far enough to pull the trolley pole from between the cross-wires; that he followed these instructions; that the motorman moved the car up a little; that he was about to stop him when his head struck, he received the shock, and knew nothing more until he was picked up from the ground. Other testimony is to the effect that the wires at the place where the plaintiff was injured were 5 feet 6 inches from the top of the car. The plaintiff was 5 feet 9 inches tall.

The negligence charged is that defendant was negligent in constructing and maintaining the wires in an unlawful, careless and dangerous manner about 5 feet above the top of the car; that defendant, while knowing the state of the wires, was negligent in not advising the plaintiff of the dangerous construction, and in failing to warn him of the dangers incident to putting the trolley pole on the wire at this place, and was negligent in not providing insulation for the trolley pole, and in failing to provide sufficient tools or equipment for placing the pole upon the wire without exposing plaintiff to danger.

The answer denies negligence, alleges that the plaintiff was familiar with the manner of construction of the tracks, cars, trolley poles, and trolley wires, and knew the dangers incident to the operation of his work; that plaintiff had been a conductor for 3 1/2 years prior to the accident, and was familiar with the construction and elevation of the trolley wires at that place for all of said time, and that, knowing the danger, he negligently took hold of the trolley pole; that the accident was brought about by his own carelessness and neglect of duty, and that the pole and wires were maintained and constructed in the usual and proper manner. The jury returned a verdict in favor of plaintiff for the sum of $ 30,000. Defendant appeals.

The court instructed the jury that the only acts of negligence charged against the defendant for them to consider were "that the defendant company was guilty of negligence in the method or manner of constructing or maintaining its overhead wires at the place of the accident in question," and "that the defendant company was guilty of negligence in failing to notify the plaintiff of the dangers incident to working on top of the car in close proximity to the wires," and that if they failed to find by a...