Beavers v. Christensen
| Decision Date | 27 December 1963 |
| Docket Number | No. 35536,35536 |
| Citation | 125 N.W.2d 551,176 Neb. 162 |
| Parties | Barbara BEAVERS, Appellant, v. Peter O. CHRISTENSEN, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A negligent act is not actionable unless it results in injury to another.
2. Nominal damages to vindicate a technical right cannot be recovered in a negligence action where no actual loss has occurred.
3. To justify this court in interfering with the findings of a jury on a fact question, the preponderance of the evidence must be so clearly and obviously contrary to the findings that it is the duty of a reviewing court to correct the mistake.
4. Triers of fact are not required to accept as absolute verity every statement of a witness not contradicted by direct evidence. The persuasiveness of the evidence may be destroyed even though not contradicted by direct evidence.
5. In reviewing the evidence where a jury has returned a verdict for the defendant, the defendant must have the benefit of any and all reasonable inferences deducible from the proof.
6. Instructions should be considered together in order that they may be properly understood, and when, as an entire charge, they properly submit the issue to the jury, the verdict will not be set aside.
7. If an examination of all of the instructions given by the trial court discloses that they fairly and correctly state the law applicable under the evidence, error cannot be predicated thereon.
Haney, Walsh & Wall, Richard L. Walentine, Omaha, for appellant.
Pilcher, Howard & Hickman, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action by Barbara Beavers, plaintiff, against Peter O. Christensen, defendant, for personal injuries allegedly sustained when a stock truck owned by the defendant and driven by one James A. Easley, collided with the rear end of an automobile in which the plaintiff was riding as a passenger. The trial court instructed the jury as a matter of law that the negligence of the defendant's driver was the proximate cause of the collision and that the negligence of said driver was chargeable to the defendant.
The only fact question submitted to the jury was the extent and amount of the damages sustained by the plaintiff as the result of the collision, if any. The jury returned a verdict in favor of the defendant, and the plaintiff has perfected an appeal to this court.
Plaintiff assigns as error the overruling of her motion for a new trial, and the giving of instruction No. 3 by the trial court on its own motion.
On the first assignment, plaintiff urges that the verdict is not sustained by sufficient evidence; that the verdict is contrary to the evidence; and that the verdict is contrary to law.
We briefly set out only enough of the evidence to understand the plaintiff's position. Plaintiff testified that on April 10, 1960, in the vicinity of Yutan, Nebraska, the defendant's truck struck the rear end of a car driven by her husband in which she was riding as a passenger. At that time she was 7 months pregnant. Immediately after the impact, she felt a sharp pain in her neck and back. She was jarred in the collision, but her head did not strike any object and her body was not thrown against the side of the car. She did not get out of the car until she arrived at her destination in Omaha. When she reached Omaha she left her 8-month-old child with her husband's parents and went to a dinner party. She stayed through the dinner hour but left right after the dinner. Her neck was stiff and she had difficulty turning her head. That night she slept on a heating pad. The next day she went to an orthopedic specialist who examined her and recommended heat, which she used every night and whenever she had a chance to use it during the day. When plaintiff's deposition was taken, she was asked if the pain she experienced after the impact was a sharp pain or just an ache, and her answer was "Just an ache." Plaintiff continued to care for her daughter without help and has been able to do her own housework since the day of the collision. She gave normal birth to the child she was carrying.
After the visit to the orthopedist on April 11, 1960, plaintiff did not see another doctor until August 1960. At that time she made four or five visits to a doctor's office, but the only treatment she received was from the nurse who used a heat machine on her. She saw no other doctor until May 3, 1962, when she was examined by the orthopedic specialist who testified for her at the trial. He made a physical examination and took some X-ray pictures. In May 1962 she complained of a pain between the shoulder blades, predominately on the right side, which plaintiff claimed had persisted pretty much since the collision. This doctor testified that in his opinion this was a residual of the injury she sustained, and that in his judgment she had a moderate muscle spasm.
Defendant's medical examiner, an orthopedist, testified that he examined the plaintiff on January 23, 1962. He found the range of motion of the neck area to be normal. There was no evidence of muscular atrophy or weakness and no muscle spasm was present. It was his opinion that she had sustained a mild strain of the neck, but this was not shown by his testimony to have been sustained in the collision.
This sketchy resume of the evidence is sufficient to point up the problem embraced in plaintiff's first assignment of error. It is plaintiff's contention that her evidence without a doubt establishes that she sustained personal injuries in the accident, and that the jury verdict is clearly against the weight of the evidence.
It is plaintiff's position that this case is controlled by Friesen v. Reimer, 124 Neb. 620, 247 N.W. 561. In that case the plaintiff was badly shaken and was thrown against the wheel and side of the car. She was 6 months pregnant, and labor pains began that night. A premature childbirth was avoided, but the plaintiff was compelled to remain in bed for 3 weeks and remained under the doctor's care until her child was born. The evidence indicated that the plaintiff had had two previous miscarriages but had subsequently given birth to two normal children. The jury returned a verdict for the defendant. In that case, we said:
It is true there is considerable fact similarity between the instant case and Friesen v. Reimer, supra. It is evident, however, that the proof of damages in that case was much stronger than in the instant case. Was the plaintiff entitled to at least nominal damages on the evidence adduced? On the facts in Friesen v. Reimer, supra, we assume that the court found the verdict of the jury was obviously against the weight of the evidence and that plaintiff was entitled to damages. We so interpret that decision.
If, however, Friesen v. Reimer, supra, is cited as authority for the proposition that a verdict for at least nominal damages must be returned by a jury in every case in which there is a direction on liability, we would take issue with the holding. We do not recognize such rule in this state in negligence actions. Nominal damages will not be allowed in a...
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...of fact may apply to the subject before them that general knowledge which any person must be presumed to have. Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551 (1963). It is general knowledge that a public school is a tax-supported political subdivision in the business of providing acad......
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...of the evidence in his favor, and all of the reasonable inferences that can reasonably be deduced from the proof. Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551. In addition to this rule, this court has held that in the posture of this case, where the appeal is from a verdict for a de......
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D B Feedyards v. Environmental Sciences
...damage claimed remains on the claimant even when the other party is guilty of negligence as a matter of law. See Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551 (1963). A proximate cause is a cause that (1) produces a result in a natural and continuous sequence and (2) without which th......
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Chaloupka v. State, Dept. of Roads
...verbatim in instruction No. 10 given by the trial court, and adequately covered the pleadings and evidence herein. In Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551, we held: 'Instructions should be considered together in order that they may be properly understood, and when, as an ent......