Webb v. Omaha & Southern Interurban Railway Co.

Morrissey, C. J. Plaintiff recovered a judgment for |5,000 for injuries alleged to have been sustained while a passenger on the railway operated by defendant from South Omaha to Port Crook, and defendant appeals. On plaintiff’s behalf there was evidence tending to show that at midnight, July 4, 1911, lie boarded a car at Twenty-fourth and N streets in .South Omaha to go to Fort Crook; when he got on the car there were no vacant seats; passengers were standing on the rear platform and in the aisles; some one at the rear of the car called for the passengers to move forward, and plaintiff went forward to the front platform, on which several passengers. were standing; two men were sitting on the front platform in the doorway on the right side of the car; plaintiff stood between them holding to the handholds; at Twenty-fourth and W streets the track made a 46-degree curve at the foot of a sharp decline which the car approached at 25 miles an hour; when nearing this point plaintiff felt some one tap his arm and ask .for his fare, and he reached into his pocket for his ticket, and as he did so the car gave a sudden jerk throwing him out of the car as it was rounding the curve. Plaintiff’s head was injured, and he has been unable to work, and is now subject to epileptic fits. His story of the accident is corroborated in part by several other passengers. On defendant’s behalf there was testimony tending to show that the accident occurred near Albright station, a considerable distance south of the curve at which plaintiff fixed the scene of the accident; that plaintiff, who was in the middle of the car, pushed forward, saying, “Let me off;” that when he reached the front platform he stood on the lower step between the two passengers seated in the doorway, and said, “I am going to get off here,” and jumped off the car, which was moving at the rate of 8 or 10 miles an hour, and fell on his back. [598] Defendant contends that the court erred in instructing the jury, and that the preponderance of the evidence supports defendant’s theory of the case so strongly that, if properly instructed, the jury would have returned a verdict in its favor. In the petition it was alleged that defendant permitted its car to become overcrowded, and that plaintiff was pushed out upon the front platform, and that defendant caused the car to go around a curve at a dangerous, high and negligent rate of speed, and by so doing caused plaintiff to be thrown from the car. In its answer defendant denied that plaintiff was injured at the place and in the manner alleged in his petition, and charged that plaintiff, “without giving any warning of his intention, suddenly walked through the car to the front platform and recklessly and negligently jumped therefrom.” After instructing the jury that it was incumbent on plaintiff to prove the allegations of his petition by a preponderance of the evidence, the trial court instructed the jury that, as to defendant’s allegation that plaintiff negligently jumped from a moving car, “the burden of proof is on defendant to prove such negligence by a preponderance of the testimony,” and that “if, as to such allegation of negligence, the evidence preponderates in favor of plaintiff, or is evenly balanced, then your finding as to such negligence should be for plaintiff.” It is contended that this instruction is erroneous, since it requires defendant to disprove plaintiff’s allegation of defendant’s negligence. Whether the instruction is erroneous need not be decided, since it was not prejudicial to the rights of defendant. The statute provides: “Every railroad company shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the persons injured, or when the injury complained of shall be the violation of some express rule or regulation of such road actually brought to his or her notice.” Rev. St. 1913, sec. 6052. It has been held that this statute is not applicable to a street railroad company using the streets of a city [599] without excluding the public use thereof, and which transports “passengers from one part of a thickly populated district to another in a town or city and its suburbs, and for that purpose runs its cars at short intervals, stopping at street crossings or other places irregularly, as the convenience of its patrons may require, for the receipt and discharge of its passengers.” Lincoln Street R. Co. v. McClellan, 54 Neb. 672. While the defendant company in some respects partakes of the nature of a street railroad company, it appears to he a “railroad company,” within the meaning of the statute. It is a corporation organized under the general railroad laws of this state and has the power of eminent domain. Rev. St. 1913, sec. 5940. It operates a railway from South Omaha to Fort Crook. Its articles of incorporation provide that it “may carry upon its line of railroad, passengers, baggage, freight, express and mail matter, with authority to perform all the duties of a common carrier,” and may he operated by electric or by any other motive power. Within the meaning of the statute cited, the defendant company is a railroad company. Diebold v. Kentucky Traction Co., 117 Ky. 146, 63 L. R. A. 637; Anhalt v. Waterloo, C. F. & N. R. Co., 166 Ia. 479; City of Aurora v. Elgin, A. & S. T. Co., 227 Ill. 485; Knopf v. Lake Street E. R. Co., 197 Ill. 212; Harvey v. Aurora & G. R. Co., 174 Ill. 295; Metropolitan W. S. E. R. Co. v. City of Chicago, 261 Ill. 624. Defendant also complains of another instruction, and contends that it permits the jury to find that defendant was negligent in operating the car at a high rate of speed, and assumes that defendant was negligent because its car was crowded. For reasons already given, there was no prejudicial error in this instruction. It is also contended that it was error to admit in evidence tables of expectancy showing plaintiff’s probable expectancy of life at the time of the accident, and it is argued that future damages should be based upon plaintiff’s physical condition at the time of the trial. In this connection defendant also complains of the instruction stating the measure of damages. The court instructed the [600] jury that, if they found that plaintiff’s injuries were per manent, and that his ability to work at his usual occupations had been diminished thereby, “you may take that fact into consideration in connection with the probable duration of plaintiff’s life, or such portion thereof as he would have been capable of doing such work but for his injuries, and the amount of money he was capable of earning, and, if it appear with reasonable certainty, that plaintiff will suffer pain in the future on account of such injuries, you may also consider that fact.” Defendant cites Hughes v. Chicago, R. 1. & P. R. Co., 150 Ia. 232, and Howell v. Lansing City E. R. Co., 136 Mich. 432, in which it was held that damages awarded for future mental and physical suffering must be based on the probable expectancy of plaintiff in his injured condition at the time of the trial, and not on his probable expectancy of life prior to the injury. The tables of expectancy Avere properly admitted to aid the jury in determining the pecuniary loss which plaintiff would sustain by reason of permanent injuries decreasing his earning power. If his earning-power was lessened because his probable length of life was shortened ,by his injuries, he was entitled to damages therefor. On the question of recovery for future mental and physical suffering, the instruction, though not so specific as defendant contends it should be, is not misleading or inaccurate, atid defendant made no request for a more specific instruction on this feature of the case. Prejudicial error has not been shown and the judgment is therefore .Affirmed.