The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 388
xv, 1025 p. ; 23 cm.View a full description of this legislative document.
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250 FEDERAL REPORTER
ness saw it until the collision. It also appeared in evidence that the
combined weight of the automobile and occupants was about 3,700
pounds; that the car struck the automobile on the side and at the cen-
ter of the same, and shoved it along the pavement a distance of 100
feet. If the jurors believed the evidence quoted, and they were at lib-
erty to do so, it was sufficient to sustain the verdict. No court would
be authorized to declare as a matter of law that a street car with a hand
brake running at a speed of 25 to 30 miles per hour across a street
crossing in the city of Council Bluffs with the result appearing in this
case was not negligently operated, or that the motorman exercised the
highest degree of care consistent with the practical operation of the
car.
[2] It is suggested that there was no allegation in the petition re-
lating to the speed of the car, but excessive speed is a part of the opera-
tion of the car, and that the car was negligently operated is alleged in
the petition. If the defendant wished a more particular specification
of the grounds of negligence, it had its remedy by a motion for a more
specific statement. It is claimed that the cases of Cleveland City Ry.
Co. v. Osborn, 66 Ohio St. 45, 63 N. E. 604, and Minneapolis Street
Ry. Co. v. Odegaard, 182 Fed. 56, 104 C. C. A. 496, support the conten-
tion of the defendant that a verdict ought to have been directed. In
the Ohio case there was no evidence of negligence in the operation of
the street car. The claim was that the motorman applied the brakes to
the street car with too great a force causing a jolt or jar which threw
plaintiff from the car. The court held that the conduct of the motor-
man was not negligent under the circumstances. In the Odegaard Case,
it was decided that the motorman was operating his car with all due
care as he approached and was crossing Fifth Avenue South in Min-
neapolis, when the car was struck by an automobile. Neither of these
cases rule the case at bar, and we are of the opinion that it was clearly
a question for the jury as to whether the car was negligently operated
or not under the evidence.
At the trial the plaintiff thought it was material to introduce tes-
timony as to the distance in feet at several points along Benton and
Harmony streets at which an automobile and a street car would be
visible to persons operating such vehicles respectively under the cir-
cumstances detailed in the evidence. For this purpose the witness
Cook was placed on the stand and gave testimony as to measure-
ments made by him, showing the various points along the two streets
at which the occupants of the automobile and street car could have
seen each other. It is claimed that it can be mathematically deter-
mined from the testimony of Mr. Cook that one of his lines where he
claimed the vision was unobstructed ran through a two-story brick
house marked on the diagram which the witness used. The accuracy
and reliability of the testimony of the witness was a legitimate sub-
ject for argument before the jury, and it was for the jury to give
such weight to the testimony as in their judgment it seemed to be en-
titled. We see no error in the admission of the evidence of the wit-
ness Cook.
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/403/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.