Inglehart v. Omaha & Council Bluffs Street Railway Co. , 95 Neb. 442 ( 1914 )

Sedgwick, J.

The plaintiff recovered a judgment against the defendant in the district court for Douglas county for damages caused, as she'alleged, by the negligence of the defendant, whereby she was thrown down and injured in attempting to alight from one of defendant’s cars. The plaintiff notified the conductor that she wanted to leave the car at the intersection of Fortieth and Hamilton streets, in the city of Omaha, and she alleged that defendant stopped the car upon the curve at a point where it was customary and usual to stop for the purpose of permitting passengers to alight therefrom, and that while she was in the act of alighting from the car defendant’s servants “suddenly started said car forward, throwing plaintiff to the street.” The defendant denied that the car had come to a stop, and alleged that plaintiff “stepped from the running-board to the street while the said car was rounding the curve at Fortieth and Hamilton streets, * * * and before said car had reached the regular stopping place at the far side •of said intersection.”

The defendant presents two assignments of alleged error in the brief: First. “The court erred in receiving evidence tendered by the plaintiff tending to show that the north-bound cars sometimes stopped while rounding the •curve on Fortieth and Hamilton streets for the purpose .of permitting passengers to alight therefrom.” Second. “It was for the court to decide on the defendant’s objections to the admissibility of said evidence whether the evidence was competent, material or relevant. It was error for the court to rule that the evidence was competent, relevant and material, and afterwards instruct the jury that it might or might not attach any weight to the evidence, or that the jury might decide whether the evidence was relevant or material to any point at issue in the case.”

We think that the evidence complained of was properly received. The principal question was whether the car was stopped upon the curve. The plaintiff contended that she was attempting to leave the car while the car was stopped, and the defendant answered with the contention that the car was not stopped on the curve, and that plaintiff was attempting to alight while the car was in motion. There was a sharp conflict in the evidence upon this disputed point. While evidence that the car frequently stopped at that point for the purpose of allowing passengers to alight would not of itself prove that it did so upon this occasion, still in view of the defendant’s evidence that the car had not yet arrived at its proper stopping place, the evidence complained of had a bearing upon the probability of plaintiff’s evidence that the car had stopped at the point when she attempted to alight. See, Norfolk & A. T. Co. v. Rotolo, 195 Fed. 231, and cases there cited.

The instruction complained of in the second assignment of error was as follows: “Whether or not the customary place of stopping the cars at Fortieth and Hamilton streets was at the entrance of the curve, at some point on the curve, or beyond the curve on Hamilton street, is not material in this case upon the question whether or not defendant was negligent. * * * But the evidence upon the question of the customary stopping place may be considered by you with the other evidence in determining whether or not the car stopped before plaintiff attempted to get off, if in your judgment it has a bearing upon that question.” If we should consider that this instruction submitted to the jury the question of the competency of the evidence, which is by no means clear, still the instruction was without prejudice to the defendant. If the jury rejected the evidence “of the customary stopping place” as having no bearing upon the fact in dispute, this might be prejudicial to plaintiff, but not to defendant. It is suggested that the evidence was not sufficient to prove the custom. It is said that “to establish custom of stopping on the curve the evidence must show that such habit of stopping upon the curve was general and uniform.” The rule as thus stated is not applicable to this case. There was evidence from which the jury-might find that the defendant’s cars were generally stopped upon the curve when passengers along Fortieth street desired to leave the car at Hamilton street, and, if they so found, that fact would tend to corroborate plaintiff’s evidence.

There are no errors assigned in the brief which require a reversal, and the judgment of the district court is

Affirmed.