Rule v. Claar Transfer & Storage Co. , 102 Neb. 4 ( 1917 )

Letton, J.

. This action is brought for personal injuries resulting from the collision of an automobile truck belonging to defendant with a bicycle ridden by the plaintiff, who was about 11 years of age at the time of the accident. The accident occurred at the intersection of Eleventh street in Omaha, which extends north and south, and Capitol avenue, which runs east and west.

While there is a sharp conflict in the evidence upon almost every point, the testimony in behalf of plaintiff tends to prove that the motor truck, on which were riding the driver and another man, was driven carelessly and negligently and at an excessive rate of speed southward. on Eleventh street; that the men were laughing and frolicking and paying but little attention to the street as they aproached the intersection. There is a railroad track on the west side of Eleventh street, upon which a box car was standing near the intersection. The sidewalk on the north side of Capitol avenue is 24 feet wide from the curb to the wall of the corner building on the west side of Eleventh street. The box car was so far north of the curb as to permit the driver of the automobile a clear view of the roadway to the west for a space of 12 feet before the truck reached the line of the curb. In this connection it unay be said that a witness for defendant testified that the south end of the box car was even with the south' wall of the corner building on the west side, and that he had a clear view of the sidewalk both east and west on the north side of Capitol avenue after the truck passed the south end of the box car. For the plaintiff it is also in evidence that the driver of the truck failed to give any signal of its approach as he approached the box car and intersection, and the plaintiff, who was riding about the middle of the street, and who was unaware of the approaching truck, was knocked down and injured; the truck running about 40 feet after the collision.

Plaintiff contends that the driver should have given a warning signal and checked his speed or swerved so as to avoid the accident, and that if he had been driving at la lawful rate of speed he could have done so.The statute provides that motor vehicles in cities and villages shall not be operated at a rate of speed exceeding 12 miles an hour, or greater than is reasonable and proper, and when crossing an intersection of streets shall not be driven at a rate of speed exceeding 6 miles an hour.

The testimony on behalf of defendant, in the main, is that the truck was proceeding at a moderate and lawful rate of speed, and that the bicycle and the truck were each hidden from the other by the box car. They also deny that the truck was carelessly and recklessly driven; deny that it was driven more than 5 or 6 miles an hour, and say that it stopped within a few feet. Defendant denies any negligence and further contends that the plaintiff was guilty of contributory negligence by riding on the wrong side of the street in violation of an ordinance of the city of Omaha, which provides: “In turning into another street to the left the vehicle shall turn around the center of the intersection of the two streets. ’ ’

Complaint is made that the court erred in overruling certain objections of defendant to a hypothetical question and to testimony to the effect that the plaintiff complained of pain in the injured foot. We think no error was made in these rulings. The district court by proper instruction left it to the jury to say whether contributory negligence could be attributed to a boy of the tender years of plaintiff in view of all the circumstances of the case. Complaint is made of some of the instructions given by the court, but we find no error prejudicial to defendant therein.

The principal complaint is that the evidence does not affirmatively establish circumstances from which defendant’s negligence may be fairly inferred, and that it was therefore error to submit the case to the jury. There is a substantial conflict in the evidence; but, under the facts as testified to by the plaintiff’s witnesses and by one of the witnesses for the defendant, it seems clear that if the driver of the truck had been alert on approaching the intersection, and if he had been operating his vehicle at such a rate of speed that it was under control after he passed the box car, he might have stopped it or swerved to the south and east in such a manner as to avoid the collision. At all events, the evidence of negligence was sufficient to take the case to the jury.

It is also argued that a party cannot complain of the negligence of another where his own negligence concurs in producing the injury, and that a child 11 years of age living in the city and of ordinary intelligence may be guilty of contributory negligence as a matter of law. Of the soundness of these propositions we have little doubt. The general rule is that whether contributory negligence may be attributed to. a child of such tender years is a matter for the jury under all the circumstances of each case. Breedlove v. Gates, 91 Neb. 765. It is only in an extreme case where the facts' show plainly knowledge and appreciation of the danger to be incurred if a certain act is performed, such as in the case of Johnston v. New Omaha T. H. E. L. Co., 78 Neb. 27, that a court will declare as a matter of law that a child of that age may be guilty of contributory negligence. The writer has- always been of the view that the Johnston case is an exception to the general rule, and its doctrine should not be further extended. Even if it were established that the plaintiff was of full age and discretion and “cut the corner” in violation of the ordinance, yet this would not necessarily establish contributory negligence as a matter of law. Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848, 859; Missouri P. R. Co. v. Geist, 49 Neb. 489, 496.

It is a question for the jury whether the truck was driven with due and proper care, and whether the boy was, or could have been, guilty of contributory negligence which was a proximate cause of the accident. Mahar v. Lochen, 166 Wis. 152. Some of the questions involved in this case are considered in Rogers v. Phillips, 206 Mass. 308, 28 L. R. A. n. s. 944, and in cases cited in note thereto; also in note to Coffin v. Laskau, L. R. A. 1915E, 959 ( 89 Conn. 325). Similar questions were presented in Cloherty v. Griffiths, 82 Wash. 634, and a like counclusion reached. The principal issue in this case is one of fact, and the evidence is such that a verdict in favor of either the plaintiff or the defendant might be supported thereby.

We find no prejudicial error in the record, and the judgment of the district court is

Affirmed.