Anderson v. Evans

• Decision Date: 10 April 1959
• Docket Number: No. 34491,34491
• Citation: 168 Neb. 373,96 N.W.2d 44
• Court: Nebraska Supreme Court
• Parties: Dwayne D. ANDERSON, Appellee, v. Lloyd L. EVANS, Appellant.

Page 44

96 N.W.2d 44

168 Neb. 373

Dwayne D. ANDERSON, Appellee, v. Lloyd L. EVANS, Appellant.

No. 34491.

Supreme Court of Nebraska.

April 10, 1959.

Syllabus by the Court.

1. In determining the question of whether or not a motion of a defendant for a directed verdict or for judgment notwithstanding the verdict should be sustained the court is required to consider the evidence in the light most favorable to the plaintiff and to resolve every controverted fact in his favor, and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.

3. Where there is a disputed question of fact as to whether or not an employee was informed or had knowledge of latent dangers of his employment, a question is presented for determination by a jury.

4. Where a witness is shown to be absent from the state, his testimony given at a former trial of the same cause is admissible if otherwise unobjectionable.

5. The fact that the court copied the pleadings in presenting the case to the jury is not alone sufficient to cause a reversal unless it can be said that the complaining party was prejudiced thereby.

6. It is not prejudicial error for a trial court to inform a jury orally or in writing that an inquiry made by it is covered by an instruction and that reference should be made to such instruction.

7. The trial court should be allowed a reasonable discretion in receiving or rejecting evidence of prior declarations of a witness consistent with his testimony where he has been impeached by proof of other inconsistent statements.

8. Considerable latitude must necessarily be allowed in the admission of corroborative evidence; and whether such testimony should be received rests largely in the discretion of the trial court.

9. The defense of the statute of limitations is a personal privilege of the debtor, and can be raised only by such debtor and those in privity with him.

10. The cost of preparation of a bill of exceptions is fixed by section 24-342, R.S.Supp., 1957, and an official court reporter may not charge in excess of that amount.

William W. Griffin, O'Neill, Max Kier, Charles Ledwith, Lincoln, for appellant.

Louis A. Seminara, Omaha, Julius D. Cronin, O'Neill, for appellee.

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

MESSMORE, Justice.

This is an action at law brought in the district court for Holt County by Dwayne D. Anderson, plaintiff, against Lloyd L. Evans, defendant, to recover damages for injuries sustained by the plaintiff when he was a minor 18 years of age arising out of an accident which occurred when he was employed by the defendant as a farm hand and was severely burned. The second cause of action includes amounts incurred for hospital and medical expenses by plaintiff's father, assigned to the plaintiff. The plaintiff had attained his majority prior to the time of this trial. The case was tried to a jury resulting in a verdict in favor of the plaintiff, fixing the amount of his recovery in the sum of $8,000.

This is the second appearance of this case in this court. See Anderson v. Evans, 164 Neb. 599, 83 N.W.2d 59, 61.

At the conclusion of the plaintiff's evidence and at the conclusion of all of the evidence, the defendant moved for directed verdict, both of which motions were overruled. The defendant filed a motion for judgment notwithstanding the verdict or for a new trial, which was overruled. From such rulings the defendant perfected appeal to this court.

The second amended petition of the plaintiff, insofar as necessary to consider here, alleged that an accident occurred in the process of removing a broken wooden stake from the body of a pick-up truck by means of pouring fuel onto the stake and igniting it, when the plaintiff, not knowing the explosive properties of liquid fuel and acting on the command of the defendant, picked up a can of tractor fuel to pour on the burning stake. The can exploded and seriously burned the plaintiff.

If is further alleged that the negligence, carelessness, and omissions of the defendant were the direct and proximate cause of the plaintiff's injuries. The specific acts of negligence charged to the defendant are as follows: (1) In failing to provide a safe place for the plaintiff to work; (2) in failing to inform the plaintiff of the perils and dangers incident to his employment and to instruct the plaintiff how to avoid them; (3) in failing to advise and inform the plaintiff of the contents of the can which the defendant negligently and carelessly instructed the plaintiff to pour onto the stake ignited by the defendant; (4) in commanding and directing the plaintiff to pour fuel on said burning stake, which act was a dangerous undertaking, and the hazard and danger were well known to the defendant who was a mature and experienced rancher, but which hazard and danger were not known to the plaintiff due to his youth and inexperience; (5) in failing to provide the plaintiff the proper and necessary safeguards prior to directing and commanding the plaintiff to pour said tractor fuel on the stake to be removed; and (6) in directing, commanding, and instructing the plaintiff to use the highly explosive and inflammable fuel as a means to burn the stake, when the defendant knew, or should have known, that such a method of removing said stake was the most dangerous method to the plaintiff.

The second amended petition then alleged the injuries accruing to the plaintiff by virtue of the defendant's negligence, and the nature and effect of such injuries.

The second cause of action relates to the medical expenses incurred, all of which are set out in the petition, and the assignment of the same by the plaintiff's father to the plaintiff due to the fact that the plaintiff became of age prior to the time of this trial.

The defendant's answer to the second amended petition alleged that the specific acts of negligence charged to the plaintiff were as follows: Needlessly exposing himself to the danger of fire and the danger of explosion; voluntarily assuming an unnecessary risk of fire and explosion; failing to protect himself from the possibility of fire or explosion; failing to observe that the stake, which had in his presence been partially burned, was still on fire; failing to observe that there remained in said partially burned stake a live spark; holding said can of tractor fuel in such a position as to permit a combustible gaseous mixture of its vaporized contents and air to be exposed in the presence of a spark or flame; and failing to obey the orders of his master to desist from lifting the can of tractor fuel into a position where fire or explosion would be likely to occur.

The defendant assigns as error the following: The court erred in not sustaining the defendant's motions for a directed verdict and motions for judgment notwithstanding the verdict. The court erred in excluding tendered testimony as to what knowledge of explosive properties of tractor fuel is commonly possessed by other persons of similar age and experience as the plaintiff. The court erred in admitting in evidence a newspaper article telling of the plaintiff's accident. The court erred in receiving in evidence the testimony of a witness given at a former trial without a proper foundation being laid. The court erred in giving instructions Nos. 2 and 13. The court erred in failing to permit defendant to amend his answer to plaintiff's second amended petition to conform to the proof, namely, that the medical expenses on which plaintiff sought recovery were outlawed. The court erred in giving the jury an oral explanation of an instruction.

'In determining the question of whether or not a motion of a defendant for a directed verdict or for judgment notwithstanding the verdict should be sustained the court is required to consider the evidence in the light most favorable to the plaintiff and to resolve every controverted fact in his favor, and he should have the benefit of every inference that can reasonably be deduced therefrom.' Anderson v. Evans, supra.

'In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.' Dryer v. Malm, 163 Neb. 72, 77 N.W.2d 804, 805.

We will refer to Dwayne D. Anderson as Dwayne, or plaintiff; to Lloyd L. Evans as Evans or defendant; and to Ralph Fuqua as Fuqua.

The record discloses that the plaintiff, at the time of this trial, was 23 years of age; that he went to Atkinson with Fuqua in Fuqua's car on August 5, 1953; and that upon arriving at Atkinson the plaintiff visited some relatives and was informed that the defendant was looking for help. The plaintiff and Fuqua proceeded to the defendant's farm where they met Mrs. Evans. She went with them to the hayfield where the defendant was working, and introduced them to the defendant. These young men talked to the defendant about employment. He said he needed help, and inquired about their experience. The plaintiff told the defendant he had had some experience when he worked with his uncles in hayfields for three or four summers. The defendant then discussed the type of equipment he used and showed them how he had it set up and how it operated, which was different than the plaintiff had been accustomed to. The defendant said he would pay $5 a day and give them room and board. The plaintiff was to go to the field...