Russell v. Electric Garage Co.

Fawcett, J. Action for personal injuries alleged to have been received through the negligence of defendant in causing a collision of defendant’s electric automobile with a hack driven by plaintiff. Yerdict and judgment for plaintiff. Defendant appeals. We do not find any reversible errors of law in the record. The only debatable question is one of fact — the sufficiency of the evidence of negligence on the part of defendant. At the close of plaintiff’s case, defendant moved for a directed verdict, which motion was overruled. It is unnecessary to pass upon this ruling of the trial court, for the reason that defendant waived the error, if any, in sucb ruling by proceeding with the trial and introducing evidence upon tlie issues joined by the pleadings. At the close of all of the evidence, defendant again requested the trial court to direct the jury to return a verdict in its favor, for the reason that plaintiff had failed to show any negligence on its part which caused the accident and the resulting injuries to tlie plaintiff. The motion was, in our judgment, properly overruled. As the case then stood, it was clearly one for a jury. [720] The evidence is quite voluminous. So much so that it would unwarrantably extend this opinion to attempt to set it out at length. Summed up, it shows that plaintiff Avas driving along an important public street in the city of Omaha at about the hour of midnight. It was raining and the street somewhat slippery. The vehicles were traveling in the saíne direction, east, and at substantially the same rate of speed. At the point where they were . traveling there was a slight down-grade, but there is no evidence to show that the street was not perfectly level north and south betAveen the curbs. The driver of the electric car was entirely shut in, his only means of keeping an outlook ahead being through a glass window badly blurred by the falling rain. This Avindow could have been opened so as to have afforded him an unobstructed Anew ahead. When he finally saw the hack about 25, feet ahead of him, the only effort he made to avoid a collision was by applying the brakes'. When he applied them the car began to “skid.” Observing then that his brakes were not having the desired effect, we think it was plainly his duty to have used his steering lever and turned out so as to avoid the collision. That the mechanism of his car was all in Avorking order, and that there was ample room to have passed the hack on either side, is admitted. The driver says he Avas helpless. That, under the evidence, is an unAvarranted conclusion. If he had testified that, when lie found his brakes were not going to prevent a collision, he tried to turn out, but was unable to do so, that claim might have been made with some show of reason. We do not think it is a sufficient exercise of diligence by the driver of an automobile, Avlien he sees he is about to collide with a vehicle of any kind, to use one of the methods at hand for avoiding a collision, and, when he sees that is not going to have the desired effect, sit, either helpless or careless, and fail to use other means at hand. It is charged that he was driving his car at a high rate of speed; and we think the eAddence would justify the jury in so finding. If he was not driving much faster [721] than seven miles an hour, and the hack ahead of him was also traveling at from six to seven miles an hour, it is incredible that the car could strike the hack with such force as to cause Mrs. Rosewater, in her room some distance away, to arouse her husband, Doctor Rosewater, and say to him, “There must have been somebody hurt; there was a crash in front of the house,” and advise that he get up and go out. Moreover, the street could not have been very dark. It is undisputed that an arc light was burning at the street intersection a block away, and one light at Thirty-fifth street, which point they were nearing at the time of the collision. Without pursuing the matter further, we think it would be an invasion of the province of the jury to hold that a verdict should have been directed for defendant, in the face of this evidence. The trial court very properly declined to be a party to such invasion, and its action meets with our approval. Objection is made to the rulings of the court upon objections interposed by defendant to certain questions propounded to Doctor Rosewater and Doctor Mick. These objections were not entirely without merit, as the particular questions objected to and the ansAvers thereto were somewhat speculative, and therefore obnoxious to the rule announced in Carlile v. Bentley, 81 Neb. 715; but a careful examination of the testimony of all of the physicians, testifying on both sides, satisfies us that these rulings of the trial court could not have prejudiced defendant. It is strenuously urged that the recovery is excessive. The jury returned a verdict for $4,950. Upon consideration of the motion for a new trial, the district court ruled that a neAV trial would be granted unless plaintiff remitted $950 from the verdict. Such a remittitur was then filed and judgment Avas .entered for $4,000. We have carefully examined the evidence upon this branch of the case and are of the opinion that the verdict is still too large. A careful consideration of this question has impressed us with the conviction that $3,000 will fully compensate plaintiff for his injury shown by the proofs. [722] Upon consideration of the whole case, we think the defendant had a fair trial; that no prejudicial error is shown by the record, and that the evidence is sufficient to sustain a judgment for $3,000, but that as to the excess aboAe that sum the judgment is excessive. The judgment' of the district court is therefore reversed and the cause remanded for further proceedings, unless plaintiff within 30 days from the filing of this opinion shall file a further remittitur for $1,000, in which event the judgment of the district court Avill stand affirmed. Affirmed. Sedgwick, J., dissents.