Olson v. Omaha & Council Bluffs Street Railway Co.

Paine, J. This is an action for personal injuries sustained by the plaintiff in a fall in a street car, upon which she was a passenger. The jury returned a verdict of $4,000, upon which a judgment was entered. Motion for new trial being overruled, the defendant appealed, and asked for reversal upon the ground set out in twelve assignments of error. The accident occurred at Fortieth and Cuming streets in the city of Omaha on January 6, 193-8, about 6 o’clock in the evening. The street car was standing on Fortieth street, headed north, but about to turn west on Cuming street, [217] when plaintiff got on the car, and handed the motorman, who also acted as conductor, her transfer. The plaintiff, who was 61 years of age, took hold of an iron stanchion, and started to go back' in the car, the floor of which was about eight inches higher than the floor in the vestibule. Plaintiff anticipated the usual movement of the car in starting up to go around a sharp curve, but after it had gone a few feet there was a sudden and violent stop, which threw her backward, so that her head was down underneath the driver’s seat. She broke both bones in her right arm and shattered the elbow joint. After being in a hospital a couple of weeks, she was subjected to an operation to remove pieces of broken bones. After this, she was kept in casts for six or seven weeks, and many adhesions formed around the joint, and there is no revolving motion in the forearm, and a 50 per cent, limitation in flexion and extension. The condition is permanent. She suffered a great amount of pain. She cannot do many things she could do before with this right arm. The hospital and medical bills amounted io $400. No very serious attack is made on the amount of the verdict. . To reverse this case, the defendant insists that prejudicial error occurred in the court giving instruction No. 3, requested by the plaintiff, and reading as follows: “You are instructed that, where a street car passenger shows that he or she was injured by reason of a sudden and unusual movement, jerking, or lurch of the car, an inference of negligence arises against the street railway company. You are further instructed that it is not necessary for the plaintiff under these circumstances to show what caused the unusual motion or jerk; it is sufficient for the plaintiff, to show that there was such an unusual movement, jerk, or lurch in the operation of the street car, and that this movement was the cause of the injuries complained of. The burden then shifts to the defendant street railway company either to deny the unusual motion or jerk or to otherwise explain or excuse it.” Defendant insists that the vital defect is that it tells the jury in the last sentence that the burden [218] shifts to the defendant to deny the unusual motion or jerk, or to otherwise explain it or excuse it. In the case of Mercer v. Omaha & C. B. Street R. Co., 108 Neb. 532, 188 N. W. 296, paragraphs 5 and 6 of the syllabus read as follows: “5. The burden of proof upon the issue of negligence does not shift during the progress of the trial, but rests throughout upon the party alleging such negligence; and a proper application of the doctrine res ipsa loquitur does not change said rule. “6. ‘The giving of an instruction which places the burden of proof to establish some of the facts put in issue by pleadings on the wrong party is reversible error.’ Omaha Street R. Co. v. Boesen, 68 Neb. 437.” In Lincoln Traction Co. v. Webb, 73 Neb. 136, 102 N. W. 258, it states in the fourth paragraph of the syllabus: “But where negligence is proved * * * the carrier is then required to show that it was in no wise at fault, or that the plaintiff was guilty of some negligent act which contributed to the injury complained of.” But, as a part of this opinion, the fourth paragraph of the syllabus in Lincoln Street R. Co. v. McClellan, 54 Neb. 672, 74 N. W. 1074, is disapproved, which paragraph reads: “In an action for damages for an injury received while being transported by a common carrier, the injury being shown, the burden of proof is upon the carrier to show that it was in no wise at fault.” The plaintiff offered the objectionable instruction No. 3 on her own motion, and the court gave it in the exact form in which it was offered. To avoid a reversal because of the error in this instruction, the plaintiff calls our attention to the fact that the court in two other instructions referred to the matter of the burden of proof. We find that in instruction No. 2 the court did say this: “And if it is charged by reason of negligent operation of a car containing passengers that one of them has been injured, then the burden is upon the ones so charging to prove such fact of negligent operation that proximately resulted in such injuries, before [219] the jury can conclude that there was a negligent operation.” And again, in instruction No. 4, the court stated generally that, before the plaintiff would be entitled to recover a verdict, she must establish by a preponderance of the evidence certain definite acts of negligence, and concluded: “But should the plaintiff not so establish as she is herein required to do as a condition precedent to being entitled to recover, then you will find generally for the defendant.” But nowhere do we find the usual instruction placing the burden of proof generally upon the plaintiff. Taking all of the instructions as a whole, it does not appear to the court that the objectionable statement in instruction No. 3 is modified or corrected in any other instruction. The rules of law which the court should give to the jury in its instructions in reference to negligence are simple, and should state to the jury that the burden of proving defendant’s negligence rests upon the plaintiff, and that this burden of proof never shifts to the defendant, but rests at every stage of the case upon the plaintiff; and it is well to add this fact, that negligence is never presumed, but must be proved. For the prejudicial error in instruction No. 3, the judgment is reversed and cause remanded for a new trial. Reversed.