Zancanella v. Omaha & C. B. St. R. Co.
| Decision Date | 17 May 1913 |
| Docket Number | No. 17,213.,17,213. |
| Citation | 93 Neb. 774,142 N.W. 190 |
| Parties | ZANCANELLA v. OMAHA & C. B. ST. R. CO. |
| Court | Nebraska Supreme Court |
The plaintiff testified that, as he attempted to cross the track of the street car, he was struck and knocked down by a passing car; that he did not see the car until it struck him; that while the car was passing he could see that it was running at from 25 to 35 miles an hour. Held that, while his evidence was not competent for the purpose of determining the exact speed of the car, it was properly admitted as tending to support the allegation that the person in charge of the approaching car failed to reduce its speed and advance slowly while passing another car.
Photographs showing the location of the alleged accident and the condition of the street and surroundings are not necessarily to be excluded from the evidence, merely because the situation is capable of verbal description.
The plaintiff testified that after he had alighted at a street crossing on the west side of the south-bound street car, intending to go west on the street, he changed his mind and started to go east across the parallel track, and was struck by a passing car. Held, that it was erroneous to submit to the jury the question whether the conductor was negligent in not warning him of danger in crossing the parallel track; there being no evidence that the conductor knew that he intended to cross the track, or knew, before he alighted from the car, that another car was approaching.
Under such circumstances the testimony of the plaintiff that he did not see or hear the approaching car is not sufficient to prove the allegation of his petition that there was no headlight on the approaching car, nor any bell sounded as it approached.
It is erroneous to submit to the jury issues upon which there is no evidence.
Appeal from District Court, Douglas County; Kennedy, Judge.
Action by Frotunato Zancanella against the Omaha & Council Bluffs Street Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.W. J. Connell and John L. Webster, both of Omaha, for appellant.
Geo. W. Cooper and T. W. Blackburn, both of Omaha, for appellee.
Between 10 and 11 o'clock on the evening of July 14, 1909, the plaintiff became a passenger on one of the defendant's cars at Farnam street in Omaha. He informed the conductor that he wanted to leave the car at G street in South Omaha. When they reached G street, the conductor notified him, and he left the car. Early the next morning he was found unconscious some distance beyond the crossing at G street. His foot was crushed, so that his left leg was necessarily amputated below the knee, and he had suffered other injuries. He brought this action against the defendant in the district court for Douglas county, alleging that the defendant's negligence was the cause of his injuries. The trial resulted in a verdict and judgment in his favor, and the defendant has appealed.
[1] The defendant contends that the evidence is entirely insufficient to support the verdict; that there was failure of evidence to show negligence on the part of the defendant; that the evidence does not satisfactorily show that the injury was caused by the defendant's car, and if it was so caused it was occasioned by the plaintiff's own negligence; and that the court erred in submitting various questions to the jury of which there was no evidence, and in refusing instructions offered by the defendant. The plaintiff's case depends almost entirely upon his own evidence. He testified that he was going to South Omaha to spend the night with his friend, Jim Canadella. His friend lived on G street west from the street car track about two blocks; that he and his friend are Austrians, and the plaintiff is unfamiliar with the English language. He appears in that respect to be somewhat embarrassed in giving his testimony. He says that when the conductor stopped the car at G street he got off from the car and passed towards the back end of the car, and the car went on. It was a very dark and stormy night, and there were no lights there, and he had forgotten the street number of his friend's residence, and seeing a light at some distance to the east he started at once across the parallel track; that he looked both north and south and saw nothing, and just as he stepped upon the other track a north-bound car struck him, knocked him down, and passed over his foot. He then saw by the light in the car that the car was running at from 25 to 35 miles per hour. The defendant objected to this testimony in regard to the speed of the car, and there is much discussion of this objection in the briefs upon the part of both the plaintiff and defendant. It seems clear that the plaintiff did not show himself competent, under the circumstances, to testify with any degree of accuracy as to the rate of speed of the car. He did not see the car until after he was hurt, and was then lying upon the ground in his injured condition, and but a few feet from the car that was passing. The evidence, however, shows that there is a wholesome and necessaryrule of the company that when a car is approaching another car of the company that has come from an opposite direction, and stopped to receive or land a passenger, the speed of the approaching car must be reduced, and such car must advance slowly until it has passed, and be ready to stop immediately, if necessary to avoid injuring any person getting off or on, or persons or vehicles who may be crossing the street. If this rule was violated, the company was negligent; and, while the evidence of the plaintiff was wholly inadequate to establish to any degree of accuracy the exact rate of speed of the approaching car, yet it is not so clear that the jury might not find from this evidence that the person in control of this car failed to reduce its speed and advance slowly, ready to stop immediately, if necessary, as the rule required. It is true that the conductor of the car which the plaintiff had left testified that no other car was passing at the time, and there are circumstances that seem to corroborate this testimony of the conductor; but we cannot see that the court erred in submitting the consideration of this conflicting...
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