Simcho v. Omaha & Council Bluffs Street Ry. Co.

• Decision Date: 10 January 1949
• Docket Number: 32352.
• Citation: 35 N.W.2d 501,150 Neb. 634
• Court: Nebraska Supreme Court
• Parties: SIMCHO v. OMAHA & COUNCIL BLUFFS ST. RY. CO. et al.

35 N.W.2d 501

150 Neb. 634

SIMCHO v. OMAHA & COUNCIL BLUFFS ST. RY. CO. et al.

No. 32352.

Supreme Court of Nebraska

January 10, 1949

Syllabus by the Court.

1. Where a question of fact that is material to the case is submitted to the jury by the trial court, upon which there is no evidence to support a finding, it constitutes prejudicial error.

2. Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of.

3. A driver of a motor vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be imprudent of him to proceed into the intersection.

4. The duty of the driver of a vehicle to look for vehicles approaching on the highway implies the duty to see what is in plain sight.

5. Instructions to the jury should be considered together that they may be properly understood and when, as an entire charge, it appears that they do not limit recoverable negligence to that charged in plaintiff's petition, but authorize recovery for negligence generally, they will ordinarily be adjudged to be prejudicially erroneous.

6. Where two conflicting instructions are given on a question one containing an incorrect and the other a correct statement of the law, the latter will not cure the former.

7. A corporation is liable for the negligence of the driver of an automobile only when the relation of master and servant, or principal and agent, exists between the corporation and the negligent driver.

8. A person is liable for the negligent operation of an automobile by his servant or agent only where such servant or agent, at the time of the accident, was engaged in employer's or principal's business with his knowledge and direction.

9. The stating of the issues in an instruction by substantially copying the pleadings of the parties is criticized and if such an instruction results in prejudice to the complaining party it is reversible error.

10. The proximate cause of an injury is that cause which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.

11. When instructions are requested by either party to a suit which correctly state the law upon the issues presented by the pleadings and the evidence received during the trial, it is error to refuse them, unless the points are fairly covered by other instructions given by the court on its own motion.

Kennedy, Holland, DeLacy & Svoboda and G. H. Seig, all of Omaha, for appellant.

Eugene D. O'Sullivan, Arthur J. Whalen, Ernest S. Priesman, Eugene D. O'Sullivan, Jr. and F. W. Davidson, all of Omaha, for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE Justice.

Joseph J. Simcho, Jr., commenced this action in the district court for Douglas County against the Omaha & Council Bluffs Street Railway Co., a corporation, the Layne-Western Co., a corporation, and J. L. Brandeis & Sons, a corporation. The purpose of the action is to recover damages against the defendants Omaha & Council Bluffs Street Railway Co. and Layne-Western Co. for personal injuries which plaintiff sustained in an accident which he alleges was caused by negligent acts of said defendants' employees. Plaintiff recovered a verdict against both of these defendants. Both defendants filed separate motions for new trial. From an order overruling said motions, each of said defendants have separately appealed.

J. L. Brandeis & Sons, appellee's employer at the time of the accident, was made a party defendant in this action because, under the provisions of the workmen's compensation law, it had made certain payments to appellee and for him. Since its right of subrogation does not become material, unless appellee sustains his recovery, no further mention will be made herein of said defendant.

The appellants will be referred to as such except when referred to separately. Then the Omaha & Council Bluffs Street Railway Co. will be referred to as the Street Railway Co. and the Layne-Western Co. by its full name.

The accident herein involved happened sometime about 9:15 a. m. on October 22, 1941, in the city of Omaha at the intersection of Leavenworth and Thirty-third Streets. It had been raining and the streets were wet. It was still cloudy and misting at the time of the accident.

Leavenworth Street runs east and west with a surfaced area from curb to curb of 54 feet. Thirty-third Street runs north and south with a surfaced area north of Leavenworth that is 28 feet from curb to curb and south thereof, 30 feet from curb to curb. Leavenworth, at this point, is a through street with stop signs on Thirty-third Street at the northwest and southeast corners of the intersection. These stop signs are located about 8 1/2 feet back from the curb line of Leavenworth. Both streets are hard-surfaced. Leavenworth, at the intersection, slopes upgrade to the east about 1.67 percent. Thirty-third Street, north of Leavenworth, slopes upgrade toward Leavenworth 11.39 percent. However, Leavenworth is flat as Thirty-third Street crosses it. From Leavenworth toward the south Thirty-third Street slopes upgrade 4.38 percent. There are two sets of streetcar tracks on Leavenworth, one for east-bound and the other for westbound traffic. Each set of tracks is located about three feet from the center line of the street.

There were three vehicles involved in the accident. They consisted of the bus of the Street Railway Co., the tractor of the Layne-Western Co., and the panel truck of J. L. Brandeis & Sons. The vehicle of the Layne-Western Co., which will be referred to in this opinion as a tractor, is in fact a truck tractor used for the purpose of hauling trailers. The panel truck was being driven by the appellee and had come from the south on Thirty-third Street. It stopped on Thirty-third Street at a point just south of the stop sign located at the southeast corner of the intersection and about two feet out from the east curb. After he stopped appellee proceeded to check his route sheet in order to determine the next stop on his route of delivery. With him in the truck was his helper, Nicholas Centretto.

At about the same time the bus was approaching Leavenworth from the north on Thirty-third Street. As it reached the stop sign located on Thirth-third Street at the northwest corner of the intersection it came to a stop adjacent to the west curb. It then proceeded south into the intersection to continue on its route south on Thirty-third Street. Just after the bus had crossed the center line of Leavenworth, and when it was upon or just after it had crossed the east-bound streetcar tracks, it was his near its right front wheel by the front of a tractor owned by the Layne-Western Co. This tractor was traveling east on Leavenworth.

As a result of the bus being hit by the tractor the driver of the bus lost control thereof. The bus continued across Leavenworth. Because the collision cramped its front wheels the bus traveled in a southeasterly direction. It ran into the J. L. Brandeis & Sons' truck as it was parked on Thirty-third Street at the southeast corner of the intersection. As a result of this latter collision the appellee claims he was injured and for these injuries he here seeks damages.

The first question involved in each of the appellants' separate appeals is the sufficiency of the evidence to present a jury question. There were several grounds of negligence submitted as to each appellant. Necessarily this question arises as to each of said grounds for if there is sufficient evidence to submit any one of them then there was a jury question as to that issue, although error requiring reversal may have been committed by submitting separate grounds of negligence in support of which there is no evidence in the record. Of course, if there was no evidence to support any one of the several grounds of negligence with which each appellant was charged then its motion for a directed verdict should have been sustained and the action should have been dismissed.

As stated in Roseland v. Chicago, M., St. P. & P. R. Co., 130 Neb. 637, 265 N.W. 882: 'Where a question of fact that is material to the case is submitted to the jury by the trial court, upon which there is no evidence to support a finding, it constitutes prejudicial error.'

This is discussed in Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851, 5 N.W.2d 114, 118, as follows: 'This court has often pointed out that it is error to submit issues upon which there is no evidence to sustain an affirmative finding. It is the duty of trial courts to determine the issues upon which there is competent evidence and submit them, and them only, to the jury. The submission of issues upon which the evidence is insufficient to sustain an affirmative finding is generally very prejudicial and invariably results in a second trial.' See, also, Tighe v. Interstate Transit Lines, 130 Neb. 5, 263 N.W. 483; Knoche v. Pease Grain & Seed Co., 134 Neb. 130, 277 N.W. 798; Leon v. Kitchen Bros. Hotel Co., 134 Neb. 137, 277 N.W. 823, 115 A.L.R. 1078; Pollat v. Wray, 141 Neb. 9, 2 N.W.2d 352; Allen v. Clark, 148 Neb. 627, 28 N.W.2d 439; and Melcher v. Murphy, 149 Neb. 541, 31 N.W.2d 411.

Since appellee had a jury verdict we will apply to the record the rule as stated in Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757, 759, to wit: 'In testing the sufficiency of evidence to support a...