Anderson v. Nielsen

• Decision Date: 09 March 1956
• Docket Number: No. 33886,33886
• Citation: 75 N.W.2d 372,162 Neb. 110
• Parties: Ethel ANDERSON, Appellee-Cross-Appellant, v. Wayne M. NIELSEN, Appellant-Cross-Appellee.
• Court: Nebraska Supreme Court

Page 372

75 N.W.2d 372

162 Neb. 110

Ethel ANDERSON, Appellee-Cross-Appellant, v. Wayne M. NIELSEN, Appellant-Cross-Appellee.

No. 33886.

Supreme Court of Nebraska.

March 9, 1956.

Syllabus by the Court

1. Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

2. Whether the decision was to grant a new trial or deny one, the questions here are, do the alleged error or errors appear in the record, were they called to the attention of the trial court by the motion, and do they constitute prejudicial error to the party complaining.

3. There is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.

4. This court is required in reviewing an order granting a new trial to consider all of the grounds contained in the motion for new trial and if it is found that on any of them the grant was proper the action of the district court is to be sustained.

5. Where contributory negligence is pleaded as a defense, but there is no competent evidence to support such defense, it is prejudicial error to submit that issue to the jury.

6. Contributory negligence is conduct for which the plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.

P. M. Moodie, West Point, Deutsch & Jewell, Norfolk, Moodie & Burke, West Point, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Omaha, Frederick S. Jack, Tekamah, L. J. Tierney, Omaha, for appellee.

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

YEAGER, Justice.

This is an action at law for damages for personal injuries by Ethel Anderson, plaintiff and appellee, against Wayne M. Nielsen, defendant and appellant, growing out of a collision between two automobiles at a highway intersection in Burt County, Nebraska, on November 8, 1953. The action was tried to a jury and a verdict in favor of the plaintiff for $1,689.20 was returned. Judgment was rendered on the verdict. Plaintiff filed a motion for new trial.

The motion was sustained and a new trial was granted. From the order granting the new trial the defendant has appealed. The plaintiff filed a cross-appeal as to the finding of the trial court that the question of contributory negligence had been properly submitted to the jury. What is said hereinafter disposes effectually of both the appeal and cross-appeal with respect to contributory negligence.

By the motion for new trial the plaintiff alleged numerous incidents of prejudicial error in the proceedings on the trial entitling her to a new trial. Two of them only call for consideration herein. By one of these assignments the plaintiff contended that the verdict was inadequate. By the other it was contended that the court erred in submitting the issue of contributory negligence of the plaintiff which was pleaded as a defense by the defendant. She asserts these incidents of error as reasons why the order granting the new trial was proper.

On the other hand the defendant insists that there was no prejudicial error in the submission of the case to the jury and therefore the trial court erred in sustaining the motion for new trial.

In Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772, 777, the court announced certain basic principles to be applied in cases where a motion for new trial has been sustained and an appeal is taken the purpose of which is to reverse an order of the district court setting aside a verdict and granting a new trial as follows:

'Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.'

'Whether the decision was to grant a new trial or deny one, the questions here are, do the alleged error or errors appear in the record, were they called to the attention of the trial court by the motion, and do they constitute prejudicial error to the party complaining.'

'There is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.' See, also, Abrams v. Lange, 158 Neb. 512, 63 N.W.2d 781.

The background of the proceedings here is substantially the following: On Sunday morning November 8, 1953, at about 9 a. m., Roger E. Anderson was operating an automobile which belonged to him eastward on a graveled road. This road was intersected at a point 3 miles east and about 1 1/2 miles north of Lyons, Nebraska, by another graveled road extending north and south. At the same time the defendant was operating an automobile owned by him in a northerly direction on the north and south road. The traveled portion of the north and south road was about 22 feet in width and the width of the east and west road was about 18 feet. The plaintiff was riding in the front seat with Roger E. Anderson. Anderson drove into the intersection and after he had passed to the east of the center of the north and south road the front end of defendant's automobile collided with the right rear wheel of Anderson's automobile. As a result of the collision Anderson's automobile was caused to turn around so...