McCarty v. Lincoln Traction Co.

Epperson, C. Tbe only question presented for our consideration is tbe sufficiency of tbe evidence to support tbe verdict. Tbe action was to recover damages for a personal injury sustained by tbe plaintiff alleged to have been inflicted through tbe negligence of tbe defendant’s employees. The injury occurred while tbe plaintiff was in tbe act of alighting from one of tbe defendant’s street cars upon which be' was a passenger. Tbe evidence shows that tbe plaintiff and another passenger, Hawkins, who was plaintiff’s traveling companion, were at tbe time of tbe accident engaged in a business mission, and desired to alight from tbe car near tbe courthouse in Lincoln. Hawkins gave tbe signal to stop, and at tbe usual stopping place immediately east of tbe courthouse tbe car either stopped or nearly "so.. Plaintiff and Hawkins arose from their seats, and, while standing, asked for and received transfers from tbe conductor. Hawkins received bis transfer and alighted from tbe car. Plaintiff then received bis transfer, walked to tbe east side of tbe car, stepped upon the foot board or platform, then fell upon tbe pavement, receiving tbe in [820] jury complained of. Tlie plaintiff testified that the car bad stopped; and, while he was about to alight, it started with a sudden jerk, throwing him violently upon the pavement. His testimony as to the car stopping was corroborated by one of the defendant’s witnesses. Other witnesses testified that the car had not stopped, but that it was greatly reduced in speed, and was moving very slowly when the plaintiff alighted therefrom; that the plaintiff stepped from the car, facing the rear, or, in other words, stepped off backwards. There was also testimony that the ear had moved from 20 to 30 feet from the place where Hawkins alighted to the place where plaintiff alighted- The place of accident was about one-third of a mile from the O street junction, where the plaintiff and Hawkins would each be required to board the car to which he had received a transfer- Defendant contends that the fact that the plaintiff had asked for. and received a transfer ticket amounted to a notice to defendant that the plaintiff did not intend to alight from the car until he reached the junction point. The testimony of the defendant’s conductor is to the effect that, after issuing the transfer, he saw all of plaintiff’s movements up to and including the injury; that he had no knowledge that the plaintiff and Hawkins were traveling companions, nor that the plaintiff had occasion to stop at the courthouse- The facts that the defendant’s conductor saw the plaintiff walk to the exit side of the car immediately after receiving the transfer, and the plaintiff’s conduct in arising and following Hawkins, it seems would challenge the conductor’s attention to the plaintiff’s probable intention to alight. On the other hand, there is some merit in the defendant’s argument that the facts regarding the issuance of the transfer ticket would justify the conductor in believing that the plaintiff did not intend to leave the car until the junction point was reached. Such, however, defendant cannot contend was always the rule, for the conductor had just a moment previous issued a similar transfer to Hawkins, who immediately left the car. After a careful considera [821] tion of this question, we consider that we cannot say that, as a matter of law, the fact regarding the issuance of the transfer ticket was sufficient to relieve the defendant from liability for which otherwise it was liable. It has been announced by this court that “when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.” Omaha Street R. Co. v. Craig, 39 Neb. 601. Under this rule, and after a careful consideration of the evidence, we are convinced that there was sufficient evidence introduced by plaintiff to authorize the submission of the case to the jury. Defendant, however, contends that the evidence clearly shows contributory negligence on the part of the plaintiff. As to this point, it clearly appears that, if the plaintiff’s testimony is true (and this was a question for the jury to determine), he was not guilty of contributory negligence as alleged by defendant. For these reasons and in view of the conflicting testimony as to the manner in which the injury occurred, we recommend' that the judgment of the district court be affirmed. Ames and Oldham, CO., concur. By the Court: For the reasons statéd in the foregoing opinion, the judgment of the district court is Affirmed.