Ambrozi v. Fry

• Decision Date: 22 January 1954
• Docket Number: No. 33390,33390
• Citation: 158 Neb. 18,62 N.W.2d 259
• Parties: AMBROZI v. FRY.
• Court: Nebraska Supreme Court

Page 259

62 N.W.2d 259

158 Neb. 18

AMBROZI v. FRY.

No. 33390.

Supreme Court of Nebraska.

Jan. 22, 1954.

Syllabus by the Court.

1. A left-hand turn across a public highway between intersections is fraught with danger, and one making such a movement is required to exercise a degree of care commensurate with the danger.

2. Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded.

3. Where it appears that a witness had no reasonable time, means, distance, or opportunity to formulate a basis for an opinion as to the speed of a car, the testimony of such witness is insufficient to sustain a finding of excessive speed in the absence of other evidence on the subject.

4. Where it appears that a witness had no opportunity to formulate a basis for an opinion as to its speed, it is error to permit the giving of an estimate.

5. It is only as to matters relevant to some issue involved in a case that a witness can be contradicted for the purpose of impeachment.

6. A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issues, for the purpose of contradicting him by other evidence if he should deny it, thereby discrediting his testimony.

7. When the amount of the damages allowed by a jury is clearly inadequate under the evidence in the case, it is error for the trial court to refuse to set aside such verdict.

W. O. Baldwin Hebron, Van Pelt, Marti & O'Gara, Warren K. Dalton, Robert D. McNutt, Lincoln, for appellant.

Harvey W. Hess, Hebron, J. V. Gaddy, St. Joseph, Mo., for appellee.

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

WENKE, Justice.

Margaret Ann Ambrozi brought this action in the district court for Thayer County against Floyd Fry. The purpose of the action is to recover damages for personal injuries suffered in an automobile accident which she alleged was caused by the defendant's negligence in suddenly, without warning, making a left turn in front of the car in which she was riding. Trial was had. The jury returned a verdict for plaintiff but assessed the amount of her recovery at '$ none.' The trial court thereupon advised the jury it could not accept a verdict in that form, telling them that if they found for the plaintiff she was entitled to some damages. The jury, after further deliberation, returned a verdict for plaintiff in the sum of $75. Defendant thereupon filed a motion asking the court to enter judgment on the verdict for '$ none.' Plaintiff filed a motion for new trial. The trial court sustained plaintiff's motion. It is from this order that defendant appeals.

Without dispute the evidence shows the accident happened shortly after 6 p. m. on Saturday, June 11, 1949, on U. S. Highway No. 81 at a point about 3 1/4 miles north of Chester, Nebraska; that the cars involved were a 1939 Chevrolet two-door sedan owned by appellant and a 1946 Buick fourdoor sedan owned by Martin Ambrozi of St. Joseph, Missouri, father of appellee; that the party in the Buick had left St. Joseph that day shortly after 12 noon to go to Grand Island, Nebraska; that St. Joseph is about 170 miles from Chester; that the party in the Buick consisted of appellee and her sister Mary Alice, who were riding in the front seat, and their sister Freta and her husband, Robert Birmingham, who were riding in the back seat; that Mary Alice Ambrozi, appellee's sister, was driving; that appellant was driving his car and the sole occupant thereof that at the time of the accident both cars were proceeding north on U. S. Highway No. 81, the Chevrolet in the lead; and that the right front of the Buick ran into and hit the left rear of the Chevrolet.

Appellee was married in June 1950, and her name is now Margaret Ann Osenberger.

U. S. Highway No. 81 cuts across a farm which, at the time, appellant was occupying as tenant. In fact, the highway is situated between the house and the other farm buildings located thereon. The house is west of the highway and a private lane extends east from a point just south of the house to intersect with the highway. The other farm buildings are on the east side of the highway and the private driveway also extends east from the highway to them. This lane had a dirt surface and is about 16 feet wide.

The highway at this point is straight and level. The traveling surface is covered with an oil mat which is about 26 feet in width. It had a white stripe down the center at the time of the accident. The day was clear and the surface of the highway dry and comparatively smooth. The impact occurred on the highway some 45 feet, or more, south of the south line of this private driveway is extended across the highway.

It is appellant's thought that the successful party in a case, who under the evidence adduced is not entitled to recover in any event, is not in a position to complain of errors alleged to have occurred at the trial and, because thereof, have the verdict in his favor set aside and a new trial granted. See, Copeland v. Junkin, 198 Iowa 530, 199 N.W. 363. In support of this thought appellant contends there is no evidence of any negligence on his part. In this respect he points to the following testimony of the driver of the Buick as the only evidence to support appellee's charge of negligence. She testified she was traveling between 50 and 60 miles an hour and when, 'We was about four or five car lengths behind Mr. Fry and I was going to pass him and pulled out into the left lane and blew my horn and started to go around him and was gaining speed, and then I noticed he was going to turn into a driveway and evidently he saw me and he started to pull over to the right, and then I pulled back into the right lane and I hit him.'

Standing alone this statement would not be evidence that appellant had turned, or was turning, to the left into his driveway as the Buick attempted to pass. It would only be evidence of the fact that the driver of the Buick 'noticed he was going' to do so. However, the driver of the Buick also testified that, 'when he (appellant) started to turn into his lane (private driveway) he didn't have a tail light signal,' nor did he give any hand signal.

'Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250, 255.

'The proximate cause of an injury is that cause which, in the natural and continous sequence, unaccompanied by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' Murray v. Pearson Appliance Store, supra.

'(a) No person shall turn a vehicle from the direct course upon a highway unless such movement can be made with reasonable safety, * * * and after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. (b) A signal of intention to turn right or left shall be given continuously during not less than the last fifty feet traveled by the vehicle before turning.' Section 39-7,115, R.R.S.1943.

'A left-hand turn across a public highway between intersections is fraught with danger, and one making such a movement is required to exercise a degree of care commensurate with the danger.' Petersen v. Schneider, 153 Neb. 815, 46 N.W.2d 355, 356.

When the foregoing is considered in connection with the evidence that appellant told the driver of the Buick 'it was his fault' and that at the time of the accident he was looking at his chickens, as he had had several killed, and was not paying too much attention to his driving, we think it sufficient to support a verdict for the appellee.

In this respect we have not overlooked the fact that appellant denies having turned to the left and also denies having made the statements. As to the former, although he admits he intended to turn to the left and into his private lane which leads to his home, he testified he had not reached the point where he intended to do so and therefore had given no signal of his intent nor taken any action to accomplish it. This left a conflict in the evidence as to whether or not he had started to turn into his lane, which conflict was for the jury.

It is appellant's further thought that this case falls into that class of cases in which it is held that when a jury returns a verdict for the plaintiff, but finds that plaintiff is entitled to no damages, it should, in fact, be considered a verdict for the defendant.

Under the proposition already discussed we have come to the conclusion that the evidence is sufficient to support a verdict for appellee as to appellant's liability. This issue was submitted by parts 1 and 2 of instruction No. 3. If the evidence as to damages, which issue was submitted by parts 3 and 4 of instruction No. 3, was such that the jury could properly have found appellee had suffered none then it could properly be said that that part of the jury's verdict was, in fact, for the defendant. See, Rubinson v. Des Moines City R. Co., 191 Iowa 692, 182 N.W. 865; Royal Indemnity Co. v. Island Lake Township, 177 Minn. 408, 225 N.W. 291, 292.

As stated in Royal Indemnity Co. v. Island Lake Township, supra: 'The verdict returned by the jury was: 'We, the jury in the above entitled action, find for the plaintiff and assess damages in the sum of none dollars.' In a case like this, there are usually sent out to the jury two printed forms of verdict, one finding for plaintiff with a blank space therein in which to insert the amount of damages found for the plaintiff, the...