Bartek v. Glasers Provisions Co.

Decision Date15 July 1955
Docket NumberNo. 33661,33661
Citation71 N.W.2d 466,160 Neb. 794
PartiesMildred BARTEK, Appellee, v. GLASERS PROVISIONS CO., Inc., and Howard J. Tallman, Appellants.
CourtNebraska Supreme Court

Syllabus by the Court.

1. 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 his employer's or principal's business with his knowledge and direction.

2. Before a witness, not a party to the suit, can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements.

3. In order to lay a sufficient foundation for the introduction of evidence to contradict the statement of a witness, as to a statement alleged or denied by him, it is indispensable that the witness' attention be called to the declaration alleged or denied to have been made, and that the time and place, when and where, and the person to whom such statement should have been made be cited. All of which must be done with reasonable certainty.

4. The negligence of a husband while driving an automobile with his wife as a guest may not be imputable to her but she may be responsible for the consequences of her own negligence in failing to warn him of known approaching danger or for failure to protest against his recklessness.

5. Ordinarily, the guest passenger in an automobile has a right to assume that the driver is a reasonably safe and careful driver; and the duty to warn him does not arise until some fact or situation out of the usual and ordinary is presented.

6. Where the owner is a passenger in his own automobile while it is being operated by another, the negligence of the operator is not imputable to the owner, except where the operator is the owner's servant or agent, or where the operator and the owner are engaged in a joint enterprise, or where the owner assumes to direct the operation of the automobile and to exercise control over it.

7. Where two persons unite in the joint prosecution of a common purpose so that each has authority, express or implied, to act for the other in respect to the control of the means to accomplish the common purpose, the negligence of one will be imputed to the other.

8. To constitute occupants of a motor vehicle joint adventurers there must be not only joint interest in the objects and purposes of the enterprise but also an equal right to direct and control the conduct of each other in the operation of the vehicle.

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

10. A person traveling a favored street protected by a traffic signal, of which he has knowledge, may properly assume that oncoming traffic will obey it.

Kennedy, Holland, DeLacy & Svoboda, J. A. C. Kennedy, Jr., Edward A. Mullery, Omaha, for appellants.

Tesar & Tesar, Omaha, for appellee.

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

WENKE, Justice.

Mildred Bartek brought this action in the district court for Douglas County against Glasers Provisions Company, Incorporated, and Howard J. Tallman. We shall hereinafter refer to these defendants as either Tallman or the company. There are two causes of action. The purpose of the first cause of action is to recover the damages plaintiff alleged she personally suffered because of injuries received in an accident involving a car being driven by Tallman and owned by the company. The second cause of action is to recovery for damages to her car. The basis for both causes of action is the claim that Tallman was negligent in operating the car he was driving and that such negligence was the proximate cause of the accident which resulted in plaintiff's injuries and damage to her car. Plaintiff recovered a verdict of $3,750 and the trial court immediately entered judgment thereon. Thereafter the company filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Tallman filed a motion for a new trial. Both motions were overruled. This appeal was taken from the ruling thereon.

The accident here involved occurred about 6:45 p. m. on Saturday, January 17, 1953, in Omaha, Nebraska, at the intersection of Thirty-sixth and Q Streets, Thirty-sixth Street running north and south and Q Street running east and west. Immediately preceding the accident William F. Bartek, husband of appellee, was driving a 1949 Ford club coupe west on Q Street while, at the same time, Tallman was driving a 1950 Oldsmobile coach north on Thirty-sixth Street. Appellee was riding in the car her husband was driving. These two cars collided at about the center of the intersection. As a result plaintiff was injured and the 1949 Ford club coupe, title to which was in her name, was damaged. The intersection of Thirty-sixth and Q Streets was, at that time, controlled by four traffic signals, one at each corner. The signals were operating. Any further statement as to the facts will be made in connection with our discussion of the errors assigned.

The company contends the trial court erred when it overruled its motion for a judgment notwithstanding the verdict. In considering this assigned error the following principles are applicable:

'A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.' Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569, 570.

'In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.' Stark v. Turner, supra.

As it relates to this assigned error the evidence is not in dispute. Tallman was, at the time of the accident, vice-president of the company and employed by it. The company is a Nebraska corporation engaged in the manufacture and sale of foods and provisions with its principal place of business located in Omaha. In January 1951 the company furnished Tallman a 1950 Oldsmobile coach to be used in connection with his work but also permitted him to use it for the pleasure of his family. Tallman kept this car in a garage at his home, which is located at 3821 Polk Street in Omaha. However, the company kept the title thereto in its name. This is the car Tallman was driving at the time of the accident.

Tallman's family consisted of himself, his wife, two sons, and a daughter. Shortly after 6:30 p. m. on January 17, 1953, Tallman and his two sons left their home in the Oldsmobile to attend a movie at the Chief Theatre. In going to the theatre Tallman drove north on Thirty-sixth Street, the intersection of Thirty-sixth and Q Streets being 2 blocks east and 11 blocks north of the Tallman home. The sole and only purpose for the trip was to enable Tallman and his two sons to attend the movies.

We said in Shaffer v. Thull, 147 Neb. 947, 25 N.W.2d 755: '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 his employer's or principal's business with his knowledge and direction.' See, also, Neff v. Brandeis, 91 Neb. 11, 135 N.W. 232, 39 L.R.A.,N.S., 933; Ebers v. Whitmore, 122 Neb. 653, 241 N.W. 126; Wise v. Grainger Bros. Co., 124 Neb 391, 246 N.W. 733; Witthauer v. Employers Mutual Casualty Co., 149 Neb. 728, 32 N.W.2d 413.

And, as stated in Restatement, Agency, § 238, p. 535: 'The master is liable only when the instrumentality is being used by the servant for the purpose of advancing the employer's business or interests, as distinguished from the private affairs of the servant. Thus, a master who purchases an automobile for the convenience of his servants is not subject to liability when a servant is using it for his own purposes; * * *.'

In view of the foregoing principle, which is controlling of the situation disclosed by the record insofar as it relates to the company, we find the trial court erred in not sustaining the company's motion for a judgment notwithstanding the verdict and in failing to dismiss the action against it.

Appellants contend the trial court erred in allowing appellee to impeach certain of their witnesses by the introduction of testimony they had given prior thereto at a hearing in the South Omaha police station on January 24, 1953, at which hearing they testified about chasing a car up Railroad Avenue on the evening of January 17, 1953.

Appellants called police officer William G. Hopkins and patrolman James Elder of the Omaha police force as witnesses. They testified that on the evening of January 17, 1953, they were traveling about the streets of Omaha in a cruiser car checking traffic; that they were called to the accident herein involved at Thirty-sixth and Q Streets and arrived there about 6:50 p. m.; that when they arrived there they recognized the blue Ford coup coupe involved in the accident as a car they had been chasing up Railroad Avenue; that they identified it through various means, including the license number; that when they were chasing this car up Railroad Avenue it was traveling at a very high rate of speed and being driven in a reckless manner, that is, swerving in and out among cars it was passing; and that they lost it at Twenty-fifth and U Streets when it passed a truck.

The only purpose this testimony could serve was to show the Ford coupe involved in the accident was being driven at a high rate of speed and in a...

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    • United States
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