Bauer & Johnson Co. v. Nat'l Roofing Co., 21610.

CourtSupreme Court of Nebraska
Writing for the CourtWELCH
Citation187 N.W. 59,107 Neb. 831
Decision Date16 February 1922
Docket NumberNo. 21610.,21610.
PartiesBAUER & JOHNSON CO. v. NATIONAL ROOFING CO.

107 Neb. 831
187 N.W. 59

BAUER & JOHNSON CO.
v.
NATIONAL ROOFING CO.

No. 21610.

Supreme Court of Nebraska.

Feb. 16, 1922.



Syllabus by the Court.

Where, under the evidence, the facts and circumstances attending an accident are such that different minds may reasonably differ, as to whether or not an act or omission, under such conditions, constitutes negligence, and as to whether the negligence, if found, is the proximate cause of the accident, the questions of negligence and proximate cause are for the jury.

In a case where contributory negligence is pleaded and there is evidence sufficient to submit that question to the jury, it is error to instruct the jury that, if it finds that negligence on the part of the defendant was the proximate cause of the accident complained of, their verdict should be for the plaintiff without in the same instruction telling the jury under what conditions contributory negligence by the plaintiff would defeat a recovery by plaintiff.

“If, on the trial of an action ‘brought to recover damages for injuries to a person or to his property caused by the negligence of another,’ plaintiff is found to be guilty of negligence directly contributing to the injury complained of, he cannot recover, even though defendant was negligent, unless the contributory negligence of plaintiff was slight and the negligence of defendant was gross in comparison therewith; and if, in comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which, under the circumstances, amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, the contributory negligence of plaintiff, however slight, will defeat a recovery. And even when plaintiff has established his right to recover under this rule, it is the duty of the jury to deduct from the amount of damage sustained such amount as his contributory negligence, if any, bears to the whole amount of damage sustained. Rev. St. 1913, § 7892.” Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N. W. 158.


Appeal from District Court, Douglas County; Leslie, Judge.

Action by Bauer & Johnson Company against the National Roofing Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

[187 N.W. 59]

Nolan & Woodland, of Omaha, for appellant.

Kennedy, Holland, DeLacy & McLaughlin, of Omaha, for appellee.


Heard before MORRISSEY, C. J., ROSE, FLANSBURG, and ALDRICH, JJ., and GRAVES and WELCH, District Judges.

WELCH, District Judge.

Plaintiff, Bauer & Johnson Company, recovered a judgment against the defendant, National Roofing Company, in the sum of $2,500, for damages to one of plaintiff's motor trucks on November 26, 1918. Defendant appealed.

[187 N.W. 60]

Plaintiff alleges the damages to have been caused by reason of negligence on the part of appellant in having a block of wood in the roadway of Eleventh street viaduct, in the city of Omaha, which roadway defendant was then resurfacing with asphalt. The truck in question weighed about 3 1/2 tons and at the time of the accident it was loaded with 4 tons of asphalt in semiliquid form. The viaduct is about four blocks long, extending north and south, and is level for about the first 200 feet from the south, then slopes downward to the north end. Appellant had, at the time of the accident, put on one coat of asphalt for the entire length of the viaduct and was then engaged in putting on another coat. Appellant had employed of plaintiff two motor trucks, owned by plaintiff, with their drivers, who were employed by plaintiff, to haul the asphalt to the place where it was being spread on the viaduct. The spreading of the second coat of asphalt was commenced at the north end of the viaduct. At the time of the accident it was necessary for the motor trucks to enter upon the viaduct and back down the same at and from the south end thereof, so as to avoid running over the freshly spread asphalt of the second coat, and plaintiff's drivers were directed by appellant so to do. The asphalt, on reaching the place where it was to be spread, was there dumped from the trucks; they having rear dumps. The roadway of the viaduct was but 20 feet wide. This was not wide enough to permit the trucks to be turned around on the viaduct; hence, they were backed to the place where the load was to be dumped. The viaduct was closed to travel by vehicles, other than those in the employ of appellant. On each side of the viaduct and as a part thereof was a sidewalk for pedestrians. This sidewalk was from 7 to 9 inches higher than the roadway and formed a curb for the roadway, and on the top of this curb extending along it was a strip of iron, called in the testimony the “angle iron” of the curb. At the outer edge of the sidewalk there was an iron railing 3 or 4 feet high. Along the sides of the viaduct at intervals of about 100 feet were openings or drains for carrying the water therefrom. The appellant, in doing its work, removed or chipped off around these drains parts of the creosote blocks of wood with which the roadway was paved. Part of these blocks so removed were piled on the sidewalk, and plaintiff alleged that some were allowed to remain on the roadway along which the trucks backed with their loads of asphalt. About 2 o'clock p. m. the day of the accident, while one of plaintiff's trucks was being backed down the viaduct with a load of asphalt, plaintiff claims it was necessary to turn the truck toward the east of the center of the viaduct in order to pass a tar kettle or fire pot with handles of heating irons extending therefrom, which stood on the west side of the viaduct in the roadway and was used for heating the irons with which appellant's men spread the asphalt. Plaintiff claims that on turning the forward wheel of the truck for that purpose its right front wheel struck one of these creosote blocks that defendant had left in the roadway, and that the block (which the evidence shows was about 3 1/8 inches by 3 1/4 inches by 2 inches with a slope on one side) got under the right front wheel, wedged thereunder, and skidded along diagonally the direction the car was traveling, holding the front wheels in a position which caused the rear end of the truck to continue in a diagonal direction toward the east side of the viaduct. Plaintiff also claims that this block made it impossible for the driver to straighten the wheels so as to change the course of the truck, and that the driver of the truck put on its brake; that its brakes were in good condition, but that the surface of the roadway was slippery, and that by reason of said block being under the wheel, the slope of the road, and its slippery condition, the truck was caused to slide in a northeasternly direction to the side of the roadway and struck the iron flange of the right hind wheel of the truck on the curb, and thereupon the iron flange of said wheel mounted the curb and slid on the iron on top of the curb. The iron flange of this wheel projected about three-fourths of an inch beyond the rubber tire of the wheel. Plaintiff claims that about the time the flange of the wheel struck the curb the front wheel of the truck passed over said block of wood, the left front wheel of the truck had reached about 2 feet from the curb, but the truck continued to slide to the northeast for about 6 or 8 feet, and after riding the curb on its flange that distance the wheel passed entirely over the curb onto the sidewalk of the viaduct, which gave way, and the truck fell some 50 feet to the ground and was thereby ruined. The truck was a left-hand drive and its driver was on its left side looking northward out of the east side of the cab. He testifies that he did not see the block which he says became wedged under his right front wheel when turning to pass the heating pot. As the truck went through and over the sidewalk the driver jumped therefrom, landing on the viaduct. The appellant denied that it left any creosote blocks in the roadway of the viaduct; denied that the accident was caused by the wheel of the truck striking a block in the roadway; denied that it was guilty of any negligence, and alleged in its answer that any injury to the truck was due to and caused by the negligence of the plaintiff and its employee operating the truck.

The evidence introduced by plaintiff tends to show that the accident occurred in the

[187 N.W. 61]

manner claimed by it. The driver of the truck and several other witnesses testified that the truck was backing along near the center of the roadway, at about 2 1/2 miles an hour; that on approaching a heating pot on the west side of the roadway and about 6 to 12 feet therefrom, as the truck was turning to pass said heating pot, there was a sudden jerk and change in the course of the truck, and it continued northeasternly, striking the curb, the flange of the right wheel riding it a short distance, the wheel then passing over the curb onto the sidewalk, and the truck then falling to the ground. At least three of the witnesses testify that within a few minutes after the accident they found the creosote block of wood, introduced in evidence, in the roadway at the end of a diagonal mark extending the direction the truck had taken, at the place where there is testimony that the truck was deflected from its course to pass the fire pot. The driver of the truck testifies that he felt something under the right wheel of the truck as he was turning to pass the fire pot, and that he could not straighten the wheel of the truck. All, but one, of the witnesses of the defendant, testifying as to the course of the truck, said that the truck was backing near the center of the roadway, and that it suddenly took a northeastern course, mounted the curb and run along with its right hind wheel on the sidewalk for a distance of about 50 feet, and then fell. Witnesses in the employ of the defendant testified that there was no...

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5 practice notes
  • Hamilton v. Omaha & Council Bluffs Street Ry. Co., 32694
    • United States
    • Supreme Court of Nebraska
    • February 3, 1950
    ...as a charge of contributory negligence. Large v. Johnson, 124 Neb. 821, 248 N.W. 400; Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. While the instruction in this respect was erroneous it appears to have been without prejudice. In the further paragraphs of the instructi......
  • Hamilton v. Omaha & Council Bluffs St. Ry. Co., 32694.
    • United States
    • Supreme Court of Nebraska
    • February 3, 1950
    ...as a charge of contributory negligence. Large v. Johnson, 124 Neb. 821, 248 N.W. 400;Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. 59. While the instruction in this respect was erroneous it appears to have been without prejudice. In the further paragraphs of the instru......
  • Wiseman v. Guernsey, 21898.
    • United States
    • Supreme Court of Nebraska
    • February 16, 1922
    ......Peterson v. Bauer, 83 Neb. 405, 119 N. W. 764. The defendants ...Hanson, 78 Neb. 584, 111 N. W. 368;Johnson......
  • Lamberth v. Omaha & Council Bluffs St. Ry. Co., 31888.
    • United States
    • Supreme Court of Nebraska
    • January 18, 1946
    ......Chicago, B. & Q. R. Co., 138 Neb. 67, 292 N.W. 35;Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 ......
  • Request a trial to view additional results
5 cases
  • Hamilton v. Omaha & Council Bluffs Street Ry. Co., 32694
    • United States
    • Supreme Court of Nebraska
    • February 3, 1950
    ...as a charge of contributory negligence. Large v. Johnson, 124 Neb. 821, 248 N.W. 400; Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. While the instruction in this respect was erroneous it appears to have been without prejudice. In the further paragraphs of the instructi......
  • Hamilton v. Omaha & Council Bluffs St. Ry. Co., 32694.
    • United States
    • Supreme Court of Nebraska
    • February 3, 1950
    ...as a charge of contributory negligence. Large v. Johnson, 124 Neb. 821, 248 N.W. 400;Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. 59. While the instruction in this respect was erroneous it appears to have been without prejudice. In the further paragraphs of the instru......
  • Wiseman v. Guernsey, 21898.
    • United States
    • Supreme Court of Nebraska
    • February 16, 1922
    ......Peterson v. Bauer, 83 Neb. 405, 119 N. W. 764. The defendants ...Hanson, 78 Neb. 584, 111 N. W. 368;Johnson......
  • Lamberth v. Omaha & Council Bluffs St. Ry. Co., 31888.
    • United States
    • Supreme Court of Nebraska
    • January 18, 1946
    ......Chicago, B. & Q. R. Co., 138 Neb. 67, 292 N.W. 35;Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 ......
  • Request a trial to view additional results

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