National Alfalfa Dehydrating & Mill. Co. v. Sorensen

• Decision Date: 18 April 1955
• Docket Number: No. 15173.,15173.
• Citation: 220 F.2d 858
• Parties: NATIONAL ALFALFA DEHYDRATING & MILLING COMPANY, a Corporation, Appellant, v. Harold SORENSEN, as Administrator of The Estate of Linda Lou Sorensen, Deceased, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F.2d 858 (1955)

NATIONAL ALFALFA DEHYDRATING & MILLING COMPANY, a Corporation, Appellant, v. Harold SORENSEN, as Administrator of The Estate of Linda Lou Sorensen, Deceased, Appellee.

No. 15173.

United States Court of Appeals Eighth Circuit.

April 18, 1955.

H. L. Blackledge, Kearney, Neb., for appellant.

Elbert H. Smith, Lexington, Neb. (Bernard B. Smith, Lexington, Neb., on the brief), for appellee.

Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

This is an appeal from a judgment in favor of plaintiff in an action brought by Harold Sorensen as administrator of the estate of Linda Lou Sorensen, deceased, against National Alfalfa Dehydrating & Milling Company, a corporation, which action was brought by plaintiff in his representative capacity to recover damages for the death of his intestate by the alleged wrongful act of the defendant. The action was brought under the Nebraska Act, Section 30-809, Revised Statutes of Nebraska, 1943, providing for recovery for death by wrongful act. We shall continue to refer to the parties as they were designated in the trial court. Omitting formal and jurisdictional allegations, the complaint in substance alleged that plaintiff's intestate was riding in a pickup truck owned and operated by one Anton Sorensen which was proceeding south at about twenty-five miles per hour on the west half of the road, that at the same time a truck owned by the defendant and operated by its employee, Wilbert Freeman, was approaching a highway intersection located approximately five miles northwest of the City of Lexington, Nebraska, from the east and was being driven by Freeman in the scope of his authority and employment, that the defendant's truck was loaded with ground alfalfa and was proceeding at a high rate of speed and traveling in the middle of the east-west road; that when the truck in which plaintiff's decedent was riding was more than halfway through the intersection the truck of defendant entered the intersection and struck the left side of the Sorensen truck at the left door, causing the truck to overturn in the west road ditch south of the intersection, thereby crushing and causing the death of plaintiff's decedent, that the sole and proximate cause of death was the negligence of defendant's employee and that such negligence consisted of (a) failing to keep a proper lookout for approaching vehicles, (b) failing to yield the right-of-way to a vehicle clearly within the intersection, (c) failing to yield the right-of-way to a vehicle approaching on the right, (d) operating vehicle at a dangerous and unlawful rate of speed, (e) failing to anticipate the possible approach of the vehicle from the north, and (f) failing to have the truck under control; that the decedent was five years of age, healthy, alert and industrious and that she left surviving her parents, Harold Sorensen and Viva Sorensen, as her sole heirs and next of kin. Plaintiff sought judgment for loss of expected services in the sum of $12,500.00. There was a second cause of action for the recovery of funeral expenses and medical services in the sum of $224.50.

Defendant answered admitting the formal and jurisdictional allegations of the complaint, admitting that a collision occurred between its truck and the Sorensen truck, admitting the death of plaintiff's intestate as a result of such collision but denied all alleged acts of negligence and all other material allegations.

At the time of meeting her tragic death Linda Lou Sorensen was five years of age. She was riding in a pickup truck owned and operated by one Anton Sorensen. Riding in the same pickup truck were her sister, Phyllis, three years of age and her cousin, J. Beck. Anton Sorensen had been at the farm home of Harold Sorensen and had loaded into his pickup truck seventeen sheep, and at the time of the accident he was proceeding in a south direction on a gravel surfaced country highway. About a half mile south from the place where he entered this highway the north-south highway is crossed by an east-west highway also gravel surfaced. Neither of these highways had priority over the other as to traffic volume or control and there were no stop signs or other traffic controls either at or approaching the intersection. When Anton Sorensen had reached a point about one-eighth of a mile north of this crossing he was driving at a speed of thirty to thirty-five miles per hour. He remembered nothing further with reference to the happening of the accident.¹ As he approached this crossing from the north the truck of the defendant loaded with ground alfalfa approached from the east and when the Sorensen truck reached the intersection of the two highways it was struck by the defendant's truck, the point of impact being the left door of the cab. The collision was of such impact as to force the Sorensen truck into the ditch on the west side of the north-south highway, causing the death of the plaintiff's intestate and his three year old daughter. There was evidence with reference to the physical facts, including the condition of the respective trucks and the marks on the highway, which will be further developed in connection with a consideration of the alleged errors of the trial court.

The defendant interposed a motion for a directed verdict at the close of all the testimony on the general ground of the insufficiency of the evidence to prove any of the allegations of negligence. The motion was denied and the case submitted to the jury on instructions of which no complaint is now made by the defendant. The jury returned a verdict in favor of plaintiff in the amount of $10,000.00, pursuant to which the court entered judgment. Following the entry of judgment defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial and for reduction of the verdict. The motion was denied and this appeal followed. Defendant seeks reversal on substantially the following grounds:

1. The verdict is excessive in amount.

2. The court erred in admitting Exhibit No. 1.

3. The doctrine of res ipsa loquitur may not be relied upon by plaintiff because he alleged specific acts of negligence.

4. The evidence is insufficient to sustain the verdict.

Defendant's first contention is that the verdict is excessive. The short answer to this contention is that in Federal courts in tort cases the question of the alleged excessiveness of the verdict is not reviewable on appeal. See Glendenning Motorways v. Anderson, 8 Cir., 213 F.2d 432 and cases there cited. What the rule may be in state courts we need not consider as this is a procedural matter.

Plaintiff called as a witness one Leland A. Oberg, a Nebraska State Highway Safety Patrolman who had had eight years service. He arrived at the scene of the accident shortly after it occurred. He described in detail the marks on the highway, the location of the two vehicles and their condition as he had observed them. He testified to marks in the gravel indicating the point of impact and he illustrated his testimony with reference to the physical facts and conditions by a plat described in the record as Exhibit No. 1. When the Exhibit was offered in evidence in connection with his testimony it was objected to by defendant on the following grounds:

"The defendant objects to the offer of Exhibit 1 for the reason that the information shown thereon, as disclosed by the examination of the witness, is not indicative of the actual location of the vehicles themselves, with respect to the boundaries of the intersecting highways, and for the further reason that the testimony of the witness has attempted to fix the point of impact between the two vehicles, which is an attempt

...