Sacca v. Omaha & Council Bluffs Street Railway Co.

152 N.W. 315, 98 Neb. 73, 1915 Neb. LEXIS 169

• Court: Nebraska Supreme Court
• Decided: April 3, 1915
• Docket: No. 17702
• Status: Published

Opinions

Morrissey, C. J.

This case is now before us on rehearing. The original opinion, which contains a sufficient statement of the issues, may be found in 96 Neb. 447. Counsel for defendant contended on the original hearing, and still contend, that the pleadings and evidence are insufficient to support the verdict and judgment. On the former hearing the judgment was reversed because, in the view taken of the evidence, it did not show actionable negligence on the part of the defendant. Counsel for plaintiff in a well-written brief now undertake to point out material portions of the evidence which had not been urged upon the attention of the court heretofore.

Plaintiff bases his right to recover on two grounds: First, that the car was being operated at too great a speed under the circumstances; second, that the defendant failed to have its car under proper control.

The schoolhouse was located on a quasi business street, and the grounds occupied the entire space between Seventeenth avenue and Seventeenth street, being a short block. The steps leading from the sidewalk to the schoolhouse are near the center of this block, and the children had been • in the habit of crossing the street in front of the schoolhouse in place of using the regular foot crossings at each end of the block. This was the custom which ha.d long prevailed and must have been known to the defendant. The school board had adopted no rule governing the action of the children in crossing this street, but the teacher, recognizing the danger, had attempted to establish a rule under which she would restrain the children, and keep them in a body upon the sidewalk until she gave them permission to cross the street car tracks. Her testimony indicates that this rule, or custom, was not always obeyed by the children. The day this accident occurred was the first day of school after vacation; the children were dismissed about 11 o’clock, and at the time there Avas a car on the north line of track, being the line nearest the schoolhouse, going west, and two cars on the south line of track, one traveling some distance behind the other,, going east. The teacher did not give the customary signal for the children to cross, but it appears that one little boy, referred to in the evidence as the “Hungarian boy,” ran across the street after the first east-bound car had gone by, and immediately in the rear of the westbound car. This boy got across the street without injury. The Sacca boy, no doubt inspired by the action of the little Hungarian boy, broke away from the group and attempted also to cross the street, but he was struck by the second east-bound car and severely injured. Defendant contends that the west-bound car and the second east-bound car passed one another almost immediately in front of the schoolhouse steps, and that this little Sacca boy darted across the street so close to the rear end of the west-bound car that he was not seen, and could not be seen, by the motorman on the east-bound car until the car was within two feet of him, and the motorman so testified. We think, however, that the weight of the testimony shows clearly that the boy did not pass so close to the rear end of the Avest-bound car as contended for by the defendant. The Hungarian boy left the group on the north side of the street, passed behind the west-bound car, and safely reached the south side. The Avest-bound car was moving at the usual rate of speed, and. it is evident that it must have passed several feet to the west between the time the Hungarian boy crossed the tracks and the time the Sacca boy crossed. The west-bound car having proceeded a considerable distance, there was nothing to obstruct the A'ieAV of the motorman. Had he been as watchful as the circumstances would appear to require, he would have seen this little Hungarian boy running across the tracks, and this Avould have put him on his guard and suggested the likelihood of other children following. Whatever may have been the custom of the teacher in keeping the children together until she gave them the signal to cross, it is clear that on this occasion she did not succeed in doing so.

The motorman testified: “When I Avas proceeding down grade, coming east, before I met the Avest-bound car, I saw the children standing out' on the sidewalk. This was an everyday occurrence. They had been in the habit of standing there every day when I made that trip.” The witnesses who have attempted to estimate the speed of the car place it at from five to seven miles an hour, and this, it is contended, negatives a finding that it Avas running at a high and dangerous rate of speed, or was not under proper control. While this testimony is not orally contradicted, it is shown to be incorrect by the facts surrounding the accident. Witnesses can rarely estimate accurately the speed of a moving vehicle. In this case there was nothing to direct their attention to the speed of the car until the accident became imminent, and then their attention would naturally be fastened upon the boy, and not upon the speed of the car. The proof discloses that the air brakes were in good order, and that they carried between 70 and 80 pounds of air, and, notwithstanding the fact that the motorman applied the emergency brake, the car traveled, according to the testimony of the motorman, over 40 feet, and, according to the testimony of other witnesses, 80 or 100 feet before it was brought to a stop. There is a slight downgrade at this point, but nevertheless it must have been the speed of the car that prevented the motorman from bringing it to an earlier stop after he applied the emergency brake.

In the condition of this record, the maxim res ipsa loquitur may well be applied. This accident occurred at a point on the street which had long been used as a crossing by children of ténder years. The motorman had seen them assembled upon the sidewalk. He ought to have seen one of their number run across the street in front of his car. The conditions were such as to put him upon his guard, and he might well have anticipated when the first child crossed that others would attempt to follow him. Under these circumstances, we believe the evidence going to show a high and dangerous rate of speed and lack of control is sufficient to sustain the finding of the jury.

It is urged that the court erred in taking away from the jury the question of contributory negligence on the part of the child. Without attempting to fix the exact age at which a child may be said to be responsible for his acts, and capable of being guilty of negligence, we believe that this child, who was under six years of age, cannot, under all of the circumstances of the case, be charged with negligence, and that the action of the court in withdrawing this question from the jury was not prejudicial. The child was of such tender years that it cannot be deemed in law possessed of sufficient discretion to make it guilty of negligence for its failure to exercise due care for its safety.

Error is assigned for the giving and refusal to give other instructions, but, in the view we take of the case, it would serve no useful purpose to discuss them. Considering the charge as a whole, we are satisfied that the issues were fairly stated to the jury, and submitted to them under a correct rule of the law.

No error being found in the record, the former opinion in this case is set aside, and the judgment of the district court is

Affirmed.