McLean v. Omaha & Council Bluffs Railway & Bridge Co. ( 1904 )

Ames, C.

This is an action by an administratrix to recover damage's from the defendant for having, as it is alleged, negligently caused the death of the decedent. The answer, besides denials, pleads contributory negligence. The defendant owns, maintains and operates a system of street and interurban electric railroad in and between the cities of Omaha and Council Bluffs. Double tracks of the railroad extend through “Avenue A” in Council Bluffs from the intersection of the latter with 14th street, in or near the settled part of the city, in a nearly direct line to a point at or beyond the corporate limits at a distance of two miles or thereabouts from the intersection. The scene of the accident is on “Avenue A” in a sparsely settled outskirt of the town, from a mile to a mile and a half from 14th street. At that place the avenue had not been brought to a regular grade, and there was no pavement or sidewalk, but there was a traveled wagon way alongside the railway, apparently not much used by the public. The street railway rails were of heavy steel, of the T pattern, laid upon exposed ties from eighteen inches to two feet above the surface of the ground adjacent to the right of way, so that the roadbed presented the general appearance of that of an ordinary commercial railroad in a rural neighborhood. The avenue was unlighted and the accident happened at about 20 minutes past twelve o’clock of a dark and cloudy night. What occasion the deceased had for being in the locality, or where or when he 'went upon the roadbed is not known, but he Avas walking toAvard the west, on or near the outer rail of the track used by cars moving in the same direction, and, at a point about midAvay between tAvo streets intersecting the avenue, he Avas struck by one of the defendant’s cars approaching from the east, thrown violently into- the air, and instantly killed.

The specific negligence charged is that the car was negligently and carelessly propelled and managed, and that the defendant’s agents and servants in charge of it failed to give the usual and ordinary signals of approach, or to employ the usual appliances to prevent the accident, and that “had proper and usual precautions been taken and the proper and usual appliances been employed” the deceased “could and Avould, by the exercise of diligence and care, have been seen by the defendant’s agents and servants in charge of said car in time to have stopped said car before the same struck” the deceased. It is also alleged that the car was being propelled “at a high rate of speed,” but the rate of speed is not charged to have been excessive or negligent, or to have contributed unduly to the casualty. Indeed, such an accusation would have been somewhat inconsistent with the claim that, by the exercise of proper care and diligence, the deceased could and would have been seen, and the car stopped in time to prevent striking him.

The allegation that there was a lack of proper and usual appliances is not substantially supported by evidence. All that the record discloses in that regard is the vague assertion of some of the witnesses that the headlight appeared to .them to be dim, but the degree of its brilliance is not attempted to be described, and that one was burning is not disputed. The car itself was brilliantly lighted by electricity, so as to illuminate surrounding space to a distance of several rods in every direction. No one but the motorman is shown to have been in charge of the car, and he was not produced as a witness. Wha,t he knew or did about the matter is unknown except his statement, made at the time and admitted in evidence as a part of the res gestee, that he saw the deceased walking on the roadbed near the outer rail of the track and supposed he would get off, but that he, the deceased, did not have time. How far apart Avere the car and the deceased when the latter was first seen by the motorman is not shown, so that it is impossible to say whether, after that time, there was opportunity for stopping the car and thereby preventing the accident. There is evidence from Avhich it may be inferred that a gong was not sounded nor other signal given after the discovery of the deceased, but it may also be inferred that the discovery and the collision Avere so nearly simultaneous that opportunity for so doing Avas wanting.

“A high rate of speed” in an outlying district is not complained of by the petition as negligent. How high it Avas cannot be ascertained from the evidence, Avhich upon this point is conjectural. The witnesses vary in their estimate from the ordinary rate of 12 miles an hour to 20 and 80. No two of them exactly agree. At the middle rate of 20 miles an hour the car was moving about 30 feet a second. Within what distance it could have been stopped may be inferred from the fact that it was stopped, apparently as soon as possible, after the happening of the accident, but run 150 feet or more after that event. If under the pleading and evidence the motorman can be charged with negligence, it is for lack of vigilance enabling him to discover the deceased sooner. But the night was dark, and the street was unlighted, and it is not claimed that the illumination from the car or headlight extended, or ought to have extended, more than 150 feet from the car, a distance that, at the supposed rate of speed, would have been covered in five seconds.

1. Directing Verdict. On a motion to direct a verdict for the defendant, the plaintiff is entitled to every inference which the jury would have been warranted in drawing from the evidence adduced.

The evidence was all offered by the plaintiff and is, of course, free from conflict. When she rested, the court, upon motion, directed a verdict for the defendant, upon the expressed ground that the deceased was a resident of the city of Council Bluffs and familiar with the scene of the accident and with the manner in which the defendant operated its trains, and that he was negligent in walking upon the track' of the railroad without keeping a vigilant lookout for cars which he knew were likely to approach him from behind; and that the car which caused his death might, with ordinary care, have been seen approaching for more than a mile before it reached the place where the accident occurred. The plaintiff prosecutes error, but after a careful examination of the record we are convinced, contrary to our impression at the close of the argument, that the opinion of the learned trial judge was. right, and recommend that the judgment of the district court be affirmed.

Letton and Oldham, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.