#### Omaha Street Railway Company v. Melvin Baker, by His Next Friend, Margaret Ferris.

Filed April 4, 1895.

No. 6190.

Street Railways: Negligence of Motor man: Personal Injuries: Evidence. The evidence in this case considered, and found not to sustain the verdict upon which judgment was rendered;

Error from the district court of Douglas county. Tried below before Ferguson, J.

*John L. Webster,*for plaintiff in error.

*G. A. Baldwin*and *Weaver & Giller, contra.*

Ryan, C;

On the 15th day of February, 1891, Melvin Baker, a lad between thirteen and fourteen years of age, was per*512manently injured by a car operated by the Omaha Street Railway Company. In a suit for damages on account of such injuries there was a verdict and judgment against the railway company in the district court of Douglas county for the sum of $2,500. Melvin Baker, as a messenger for the Western Union Telegraph Company, was required to take a street car going southward on the Sixteenth street line. For this purpose he came out of the alley between Douglas and Farnam streets, across which the Sixteenth street car line of plaintiff in error ran. The motor train on which he proposed riding had just passed when Melvin came out of the alley, and that he might catch it he ran diagonally in a northwesterly direction across a street railway track and immediately in front of a motor train thereon, consisting of two cars moving northward. When the south-bound motor train was nearly opposite the one bound northward, Melvin with one hand had seized the hand-hold on the rear of the foremost of the two cars going southward, and, with the other, the guard rail of the rear platform of the same car, and was still on the ground, when, as he claims, the motorman on the train going northward seized him by the neck, caused him to lose his holds and fall beneath the wheels of the rear car of the northbound motor train. It is not necessary to determine whether or not the plaintiff in eri’or would be liable if its sole ground of defense was that it was not answerable for an act of the motorman on the north-bound ti’ain entirely foreign to the scope of his duties. This proposition will not therefore be discussed. The evidence of the lad as 'to the agency which directly caused his fall was as follows:

> Q,. Had you one foot on the step?

> A. No, sir.

> Q,. What then ?

> A. I felt something jerk.me by the neck and I had to let loose. The car I had hold of was in motion and I could not hold on any longer.

> *513Q,. What was there, if anything, on the track going north ?

> A. A motor. * * * .

> Q,. What did you say caused you to let go your hold?

> A. Something grabbed me by the neck. I couldn’t say sure it was the motorman, for I don’t know whether there was anybody else on the front platform or not.

> Q. State what you mean to say. Whether some person took hold of you by. the neck?

> • A. Yes, sir; some person did.

> Q,. Where did he take hold of you?

> A. Right in in the middle of the neck, on my coat.

> ; Q,. Where was the person, whoever it was, that took hold of your clothing by the neck?

> . A.. On the front platform.

> Q,. Of what?

> A. Of the motor.

> Q. Going which way?

> A. North.

> Q. When you let go, under these circumstances, what became of you then?

> A. I fell.

> . Q,. Tell the court and jury what condition you fell; that Is, after you fell how did you lie?

> A. With my head to the south. *; * *

> Q. Which way was your head ?

> A. South.

> Q. Tell the jury when you fell, and., with your head to the south, whether your face was up or down.

> A. Up.

> Q,. What then happened to you after you fell and were on the ground and lying in that condition?

> A. I just felt the wheel hit my arm; it just held there for a little while and then passed on over.

> Q. Which arm.did it catch?

> A. The right arm.

*514It is not questioned that the boy’s arm was very seriously injured by the wheel passing over it in the manner described. On his cross-examination, the testimony of Melvin was-that he did not have a chance to look back to see who had caught him by the neck; that he did not see who it was behind him that caught hold of him and did not know where the person was standing that “grabbed hold” of him. Mrs. Dale was a witness for the plaintiff in the district court and testified that with her husband she was riding on the west side of the foremost car of the motor train going northward, and' that, looking out of the front window, she-saw the boy crossing the track toward the northwest; that she was somewhat scared by his attempting to cross the track with the north-bound train so close, moving toward him; that it was evident to her that he could not cross both tracks before the south-bound train would reach him; that it was her impression that no one was on the front platform of the car on which witness was riding except the motorman;, that when she saw the boy crossing the track he was about ten or fifteen feet ahead of the car in which she was rid-ing. The testimony of Mrs. Dale’s husband was in substantial accord with that of his wife, though he ventured no statement as to any one being with the motorman on the platform. In addition to wln't his wife had sworn he testified that after the boy had crossed the track in front of the train on which the witness was riding he did not see the boy, and that “almost immediately the other car held up and ours put on the brakes, and I heard a cry, a boy cry at the rear end of our car — -of our train.” The motorman of the north-bound train testified that when the boy crossed in front of him he not only set the brake but reversed his motor to avoid injuring the boy, and that he did not take hold of him in any manner whatever. In relation to the efforts of the motorman to avoid running against the boy while he was crossing the track there is no question made, for whatever the degree of care was which *515was exerted it was conceded that the result was that he reached the south-bound train uninjured — such efforts if made, however, precluded the possibility of his seizing the boy. The right of recovery on plaintiff’s own theory was wholly dependent upon the establishment of the alleged misconduct of the motorman of the north-bound train in causing the boy to lose his holds on the car moving southward. The evidence of the boy, bearing upon this proposition, has been quite fully set out, because he alone gave testimony to establish it. It must be conceded from his own statements that he did not attempt to take the car at the street crossing, the only place at which stops were made to receive passengers. Erom his testimony, taken as a whole, it does; not appear that he testified that the motorman seized him,, as of a fact of which he had knowledge. On the contrary,, he expressly admitted that he could not say who it was, but apparently argumentatively he asserted that it was the' motorman of the north-bound train. No one else testified, on this subject but the motorman himself, and he flatly denied that he touched the boy in any way. The requirement of a showing that the accident was caused by the negligence or misconduct of the street car company, or its employes, was hardly met by the testimony of the defendant in error as to questions of fact, even conceding his counsel’s theory of the law. to be correct. There was no direct evidence that the motorman touched this boy. True, the boy testified that he did, but he admits that he could not, and did not know whether it was the motorman or not. In this condition of his testimony certain circumstances have a great weight in showing that this lad mistakenly ascribed the blame for his misfortune to the motorman on the north-bound train, for his own statements were-that when he was thrown to the ground his face was up and his head was toward the south. There is no conflict in the evidence that both the north-bound train and the southbound train were in motion when the accident occurred. *516This being true, if the motorman on the train northward-, bound caught this boy by the neck and threw him to the ground, the fall must have been in the direction in which said motorman himself was moving, and it was therefore unavoidable in such case that the boy’s head should have been toward the north, probably with the face upward. If, on the other hand, the impelling force was moving southward, the boy would have fallen with his head toward the south. In the hurry of crossing to avoid the close approaching train from the south, and the confusion resulting, from finding himself suddenly between two trains moving in opposite directions, it was perhaps natural that this boy could scarcely understand how the swiftly following accident happened. That his impression that the motorman seized him was but conjecture is evident from his own statement; that in this conjecture he was mistaken, is quite obvious from the circumstances just noted. As there was no sufficient evidence to sustain the verdict the judgment of the district court is

Beversed.