Bassinger v. Agnew, 42574
| Decision Date | 08 April 1980 |
| Docket Number | No. 42574,42574 |
| Citation | 290 N.W.2d 793,206 Neb. 1 |
| Parties | Lois BASSINGER, Appellee, v. Libbian A. AGNEW, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Directed Verdict. A motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence favorable to the party against whom the motion is made and who is entitled to the benefit of all proper inferences that can reasonably be deduced therefrom.
2. Directed Verdict: Juries. At the conclusion of either party's case, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find on a particular issue in favor of the party upon whom the burden of proof on that issue is imposed.
3. Pedestrians: Motor Vehicles: Right-of-Way. A pedestrian has equal rights with the operator of a vehicle in the use of a private way used by members of the public and each must use reasonable care for his own safety and the safety of others.
4. Pedestrians: Right-of-Way: Negligence. A pedestrian has a legal right to walk longitudinally along a highway or driveway, but in doing so is required to use reasonable care for his own safety.
5. Damages: Juries. Where there is competent evidence of future pain and suffering that is reasonably certain to continue into the future, the amount of damages is for the jury.
Wellensiek & Rehmeier, Nebraska City, for appellant.
Hoch & Steinheider, Nebraska City, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Appellant, Libbian A. Agnew (defendant), appeals from a jury verdict of $6,250 entered in favor of appellee, Lois Bassinger (plaintiff), as a result of an automobile-pedestrian accident. The trial court had directed a verdict as to liability. Defendant assigns as errors the following: (1) The court refused to direct a verdict in defendant's favor at the conclusion of plaintiff's evidence; (2) The court ruled that defendant was guilty of negligence as a matter of law; (3) The court failed to instruct the jury on the question of plaintiff's contributory negligence; and (4) The verdict of the jury was not supported by the evidence and was excessive. We reverse and remand for a new trial.
The accident in question occurred on August 11, 1977, along the south side of St. Mary's Hospital in Nebraska City. The hospital is located on the north side of Third Avenue, just east of 14th Street, and the accident happened near an entrance which faces to the south. The entrance doorway itself opens out from what appears to be a waiting room addition, which addition extends out to the south a distance of approximately 20 feet from the main building and is about 55 feet long from east to west. To the immediate east of the hospital, taking up most of the remainder of the block, is a parking lot for automobiles. A driveway approximately 10 feet in width runs from the parking lot in a straight westerly direction along the hospital entrance a distance of about 5 or 6 feet to the south of it. Immediately west of the entrance is a flower bed taking up the space between the driveway and the wall of the waiting room and extending approximately 10 feet west to the outside wall of the waiting room structure. From that point on, an open expanse of lawn across which pedestrians can walk extends and fans out to the northwest, west, and southwest. Just at the east edge of the flower bed, the driveway begins to curve to the south and terminates, running straight south onto Third Avenue.
Proceeding due south from the entrance is a pedestrian sidewalk which, after crossing the driveway, continues on south to the public sidewalk running along the north side of Third Avenue. Other than on that sidewalk and the driveway, there was no other way for a pedestrian to proceed from the hospital to the public streets or sidewalks.
At approximately 3:15 p.m. on the day of the accident, plaintiff, the housekeeping supervisor at the hospital, and two of her coworkers, Mildred Lyerla and Judy Jensen, concluded their duties for that day and were leaving the hospital. All three women, with plaintiff in the lead, followed by Mrs. Lyerla and then Mrs. Jensen, came out of the entrance, stepped off the curb onto the driveway, and proceeded in a single file in a westerly direction. According to Mrs. Lyerla's testimony, all three women looked both to the east and to the west before stepping onto the driveway and there were no moving automobiles in sight. Also, they were all walking right next to the curb on the north side and it was not possible to walk off the driveway at that point because of the flower bed. She went on to say that The point where the plaintiff was struck was just about where the driveway begins to curve to the south. According to the testimony of the witness, the car did not stop, but the witness observed the license plate number. The other two women then helped plaintiff up and into the hospital.
The plaintiff testified in her own behalf and said she was a 47-year-old married woman who had three children, one of whom was a minor, aged 16, and still at home. Her version of the accident was very similar to Mrs. Lyerla's. She said they walked out the entrance, looked both ways, saw no cars, and then proceeded to walk in a westerly direction in single file right up next to the curb. She said this was her usual route in leaving work and ordinarily, when she got to the end of the flower bed, she would step up onto the grass and walk across the lawn. According to her testimony, three-fourths of the people leaving the hospital do so in the same manner. While still alongside the flower bed, she said, there was "(j)ust this awful loud thud that hit me and knocked me down." She said she was struck on the left hip and thigh and was knocked to the ground. When asked if she saw the car after it hit her, she said she knew it was there and that she was between it and the curb and she was in fear she would be run over.
The defendant's version of what happened is that there was no accident at all. She testified that she proceeded on down the driveway in a westerly direction past the door and saw the three women walking in single file in the same direction alongside the flower bed. She claimed to have stayed as far to the south side of the driveway as she could and, as she was passing the pedestrians, "the first one leaned over toward the driveway a little bit farther and I thought at the time she must have dropped something . . . and she seemed to lean over to pick it up." Defendant claimed to be going not more than 5 miles per hour and insisted she felt nothing that would give her any reason to believe she had struck anyone. She knew nothing about the accident until contacted by the police a short time later when she had returned to her home.
The first three assignments of error may be treated together. Basic to a consideration of them is an awareness of the rule that a motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence favorable to the party against whom the motion is made and who is entitled to the benefit of all proper inferences that can reasonably be deduced therefrom. Empfield v. Ainsworth Irr. Dist., 204 Neb. 827, 286 N.W.2d 94 (1979). Also important in our determination is the corollary to that rule that, at the conclusion of either party's case, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find on a particular issue in favor of the party upon whom the burden of proof on that issue is imposed. Id.
With these basic rules in mind, it is necessary to explore the rules of substantive law that are applicable to this particular case. In Nygaard v. Stull, 146 Neb. 736, 21 N.W.2d 595 (1946), we held that the rules of the road fixed by the statute then in effect, Neb.Rev.Stat. § 39-741 (1943), extended not only to all public highways, but also to all roads not public highways if used for travel by the public. That particular statute defined the term "highway" as "every way . . . open to the use of the public, as a matter of right, for the purposes of vehicular travel . . . ." Since that time, that particular statute has been repealed and in its place is Neb.Rev.Stat. § 39-602 (Supp.1979), which defines a highway as "any . . . way which is...
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