Beatty v. Davis

• Decision Date: 13 February 1987
• Docket Number: No. 85-453,85-453
• Citation: 224 Neb. 663,400 N.W.2d 850
• Parties: Carol BEATTY, Appellee, v. Emmaline DAVIS, Deceased, Appellee, and Ornan Davis, Appellant.
• Court: Nebraska Supreme Court

Page 850

400 N.W.2d 850

224 Neb. 663

Carol BEATTY, Appellee, v. Emmaline DAVIS, Deceased, Appellee, and Ornan Davis, Appellant.

No. 85-453.

Supreme Court of Nebraska.

Feb. 13, 1987.

Syllabus by the Court

1. Negligence: Evidence. The doctrine of res ipsa loquitur is that where the instrumentality causing the injury is shown to be under the defendant's exclusive control and management and the accident is one that in the ordinary course of things does not occur if those who have its management or control use proper care, reasonable evidence is afforded, in the absence of an explanation by the defendant, that the accident arose from want of proper care.

2. Negligence: Evidence. If specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable.

3. Damages: Jury Instructions. Where the plaintiff claims damages for lost wages, and the trial court instructs the jury that the plaintiff can recover damages for wages lost due to the inability of the plaintiff to work, it is not error to refuse to instruct that the plaintiff has a duty to mitigate damages.

4. Jury Instructions. Counsel has the duty of tendering a more specific instruction where one is desired.

J.L. Zimmerman, Scottsbluff, for appellant.

Robert W. Mullin of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

This was an action by the plaintiff, Carol Beatty, to recover damages for the personal injuries she sustained on November 2, 1981, when the defendants' automobile ran over her.

The plaintiff and the defendants, Emmaline Davis and Ornan Davis, were neighbors living in a trailer court in Scottsbluff, Nebraska. On the day of the accident Emmaline Davis, intending to go shopping, started their 1977 Pontiac Bonneville automobile, which was parked in front of their trailer. Realizing that she had forgotten her glasses, Mrs. Davis left the engine running and returned to the trailer. Later, Mrs. Davis told an investigator that she left the gearshift in park position. After retrieving her glasses and talking with her husband, she returned and found the vehicle traveling in a reverse circular path at idling speed.

At about this time the plaintiff was working in a flowerbed at the rear of her mobile home. When she heard some noise, she came around to the front of her home and discovered the Davis vehicle had struck a yard light near her trailer and was still moving, with no one in control. Seeing the driver's-side door open, the plaintiff attempted to jump in and stop the vehicle. The plaintiff testified that she did so at Mrs. Davis' request and because the plaintiff thought the vehicle might hit Mrs. Davis and her own trailer home. Mrs. Davis denied asking the plaintiff to stop the car.

The plaintiff was able to grasp the steering wheel, but was struck by the open car door, which caused her to fall to the ground. The vehicle then ran over her left knee and lower right leg. She crawled to the safety of the Davis lawn, as the vehicle struck a concrete block wall and finally came to a stop when a block from the wall lodged behind one of the wheels.

The second amended petition alleged that Mrs. Davis' general negligence, the specific acts of which were unknown, was the direct and proximate cause of the accident and the plaintiff's injuries. Mrs. Davis' negligence was alleged to be imputed to her husband, the defendant Ornan Davis, because the automobile was a family purpose automobile. The plaintiff prayed for $8,157.78 in special damages for medical expenses, damages for lost income, and general damages.

The answer denied that Mrs. Davis had put the vehicle in reverse gear or that the defendants had been negligent in any way. The answer also alleged that the plaintiff had assumed the risk as a volunteer and had committed acts of contributory negligence which were more than slight. The defendants also claimed a setoff of $5,099.89 because of medical payments made by their insurance carrier.

Mrs. Davis died prior to trial. The jury returned a general verdict for the plaintiff in the amount of $84,811.20. The defendant Ornan Davis has appealed.

On appeal the defendant contends the trial court erred (1) in overruling his motion for a directed verdict or, alternatively, by failing to order a mistrial; (2) in failing to give his requested instructions on the duty to mitigate damages and on the duty of a volunteer; (3) in giving instruction No. 9, because it failed to state the necessary elements of the rescue doctrine; and that (4) the judgment is not sustained by sufficient evidence.

The first issue concerns whether the plaintiff's proof went too far in proving specific acts of negligence and therefore eliminated res ipsa loquitur as a means of proving her case.

The doctrine of res ipsa loquitur is that where the instrumentality causing the injury is shown to be under the defendant's exclusive control and management and the accident is one that in the ordinary course of things does not occur if those who have its management or control use proper care, reasonable evidence is afforded, in the absence of an explanation by the defendant, that the accident arose from want of proper care. Nownes v. Hillside Lounge, Inc., 179 Neb. 157, 137 N.W.2d 361 (1965); Sober v. Smith, 179 Neb. 74, 136 N.W.2d 372 (1965).

When applicable, the essence of the doctrine is that an inference of negligence arises without further proof, and the facts speak for themselves. McCall v. St. Joseph's Hospital, 184 Neb. 1, 165 N.W.2d 85 (1969); Security Ins. Co. v. Omaha Coca-Cola Bottling Co., 157 Neb. 923, 62 N.W.2d 127 (1954). Liability then becomes an issue for the jury. Security Ins. Co., supra.

In Nebraska it is clear that if specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable. See, Lund v. Mangelson, 183 Neb. 99, 158 N.W.2d 223 (1968); Nekuda v. Allis-Chalmers Manuf. Co., 175 Neb. 396, 121 N.W.2d 819 (1963); Security Ins. Co., supra; Miratsky v. Beseda, 139 Neb. 229, 297 N.W. 94 (1941); Knies v. Lang, 116 Neb. 387, 217 N.W. 615 (1928). The doctrine is applicable only where the plaintiff is unable to allege or prove the particular act of negligence which caused the injury. Security Ins. Co., supra.

In the present case no specific acts of negligence were alleged in the petition. Instead, the defendant complains that the specific act of negligence resulting in the injury, i.e., Mrs. Davis' leaving the vehicle in reverse gear, was clearly proved at trial.

In Knies v. Lang, supra, this court indicated that res ipsa loquitur would not apply in a case where the evidence showed the "precise" cause of the accident. The court in Knies also made reference to the discussion of the doctrine in McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079 (1915). In that case the court reasoned that while the doctrine is unavailable where the precise cause is shown, the plaintiff does not lose the benefit of the doctrine by introducing evidence of specific acts of negligence, where the evidence leaves the cause of the accident in doubt or does not clearly show the cause. McAnany v. Shipley, supra.

Also, in Security Ins. Co. v. Omaha Coca-Cola Bottling Co., supra 157 Neb. at 928, 62 N.W.2d at 131, we stated:

"[A]n unsuccessful attempt on the part of plaintiff to show the specific negligent act which caused his injury does not weaken or displace the presumption of negligence on the part of the defendant arising from the facts of the case by virtue of the rule of res ipsa loquitur."

Quoting 65 C.J.S. Negligence § 220(6) (1950).

Finally, in Nuclear Corporation of America v. Lang, 480 F.2d 990, 992 (8th Cir.1973), the U.S. Court of Appeals for the Eighth Circuit, while interpreting the doctrine as applied in Nebraska law, indicated:

[I]t is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur. W. Prosser, Law of Torts 236 (3d ed. 1964).

The plaintiff's evidence of which the defendant complains consists of expert testimony by an experienced automobile mechanic that he had never heard of the type of transmission on the Bonneville's jumping into reverse; the plaintiff's testimony that after the accident Mrs. Davis told the plaintiff that she (Mrs. Davis) must have hit the gearshift lever with her purse as she left the car; Mr. Davis' deposition statements that the vehicle had never jumped out of gear either before or since the time of the accident; and the plaintiff's testimony that Mrs. Davis was the only person she saw in the area when the plaintiff first discovered the runaway car.

The defendant makes no reference to the fact that the plaintiff introduced evidence that Mrs. Davis told an investigator at the scene that she had left the vehicle running and in park and that later, in a deposition, Mrs. Davis stated that she did not believe she had left the car in reverse or that she had struck the shift lever with her purse.

Considering the plaintiff's evidence, it can hardly be said that the cause of the accident was clearly shown. Mrs. Davis' statement that she must have hit the shift lever with her purse was thrown into doubt by her later statement that she did not think she had struck the shift lever or had left the vehicle in reverse. The evidence also fails to show that anyone actually witnessed what caused the vehicle to begin to move in reverse.

In considering a motion for a directed verdict, the trial court must resolve all controverted...