Beck v. Trustin

• Decision Date: 20 November 1964
• Docket Number: No. 35704,35704
• Citation: 131 N.W.2d 425,177 Neb. 788
• Parties: Frederic BECK, Appellee, v. Harry TRUSTIN, Appellant.
• Court: Nebraska Supreme Court

Page 425

131 N.W.2d 425

177 Neb. 788

Frederic BECK, Appellee, v. Harry TRUSTIN, Appellant.

No. 35704.

Supreme Court of Nebraska.

Nov. 20, 1964.

Syllabus by the Court

1. In every case, before the evidence is submitted to the jury 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 could properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

2. A motion for a directed verdict, or for judgment notwithstanding the verdict, admits, for the purpose of decision on the motion, the truth of the material and relevant evidence of the party against whom the motion is directed, and he is entitled to have every uncontroverted fact found in his favor, and to have the benefit of every inference deducible from the evidence.

3. When different minds may reasonably draw different conclusions from the same facts as to whether or not they establish negligence or contributory negligence, such issues should be submitted to the jury.

4. Negligence, to be actionable, must be the proximate cause of the injury.

5. The failure of a pedestrian with the right-of-way to see an approaching car within the limit of danger or to misjudge its speed does not ordinarily constitute contributory negligence as a matter of law.

6. Whether a party failed to look or looked and failed to see a motor vehicle when it was within the limit of danger is a question for the jury, except in those cases where the evidence is so conclusive that the approaching motor vehicle was within the limit of danger that reasonable minds could not differ thereon.

7. It is the duty of the trial court to fully instruct the jury upon the theory of a party to an action if that theory finds support in the evidence.

8. The headlights of motor vehicles shall be so constructed, arranged, and adjusted that they will, under normal atmospheric conditions and on a level road, produce a driving light sufficient to render clearly discernible a person 200 feet ahead, but shall not project a glaring or dazzling light to persons in front of such headlights.

Herbert E. Story, Robert C. Oberbillig, Omaha, for appellant.

Schrempp, Lathrop & Rosenthal, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

SPENCER, Justice.

This is an action for damages brought in the district court for Douglas County, Nebraska, by Frederic Beck, plaintiff and appellee, hereinafter referred to as plaintiff, against Harry Trustin, defendant and appellant, hereinafter referred to as defendant, for injuries sustained because of the negligence of the defendant when his automobile collided with the plaintiff, a pedestrian.

The cause was tried to a jury and a verdict was returned for the plaintiff. Defendant filed a motion for judgment notwithstanding the verdict, and for a new trial. This motion was overruled and the defendant perfected his appeal to this court.

We detail only sufficient of the facts necessary to an understanding of the questions involved. At approximately 5:45 p. m. on November 22, 1961, plaintiff, who had alighted from a city bus at the corner of Nicholas Street and Happy Hollw Boulevard, was walking in an easterly direction on the south side of Nicholas Street toward him home, which is located east of the intersection of Fifty-second and Nicholas Streets. Plaintiff at that time was wearing a blue and white checked overcoat and no hat. The defendant at the time of the collision was driving his automobile south on Fifty-second Street on his way to his home, which is located sough of Dodge Street. He had come off the boulevard and turned south on Fifty-second Street at Western Avenue, which he estimates to be 220 or 230 feet north of Nicholas Street.

Plaintiff testified that when he reached the southwest corner of Fifty-second and Nicholas Streets, he looked to the north to see if there were any cars coming. He saw the lights at the Fifty-second Street and Western Avenue intersection, but saw no cars in the block which were coming his way. He did not hesitate or break his pace but kept right on walking. He stepped off the curb and then looked to the south and saw a car coming but judged it to be far enough away to permit him to cross safely. He then testified: 'Q. Then just tell the ladies and gentlemen of the jury what happened from that point on, sir. A. Well, I kept walking across the street at a normal pace; and as I neared the center of 52nd Street, I started turning to look to the north. I saw out of the corner of my eye some lights of a car; and then before I could do anything, I was struck. The car came so fast that there wasn't anything I could do to get away from it.' At that time he testified he was about 1 1/2 feet from the center of the intersection in what would be the crosswalk through the intersection connecting the east and west sidewalk on the south side of Nicholas Street. The sidewalk area was 10 feet south of the street.

The defendant testified that it was a 'murky dark' evening and he had his lights on as he approached the Fifty-second and Nicholas Streets intersection. There were some lights shining and he realized it was a car approaching but paid no attention to it. His testimony is as follows: 'Q. And tell us now just what happened as you came up to that intersection. A. Well, as I say, it was murky and I was--as I say, I was traveling 20 to 25 miles per hour. When I got to the intersection, right into the interesection, I saw a figure. Well, to me it looked like he leaped, and I immediately slammed my brakes on and pushed my horn at the same time--both feet because I wanted to stop that car--and I struck this man just about at the sidewalk that crosses to the east and west on the south side of Nicholas. Q. And what happened to you car then? A. Well, I must have slid 10 or 15 feet, but my car was absolutely dead when I hit him. Just as I hit him it stepped right there. I jumped out around, and I--naturally I gathered the fellow up in my arms, and I realized I didn't dare to move him because I didn't know what had happened. * * * Q. Well, did you see him when he was on the curb? A. No. You see, he seemed to have leaped. I don't know whether he was running, I dind't see him come there; but as he came off that curb, he seemed to have leaped across that--off that curb; so I didn't see him at all until he was right in the middle of those lights. And he seemed to be not on the ground, you see. What I mean, in other words, his feet were off the ground.'

An investigation officer who was called to the scene testified there were 32 feet of skid marks behind the car, which had passed through the intersection so that the rear end covered the south crosswalk. He testified the car was 20 feet in length and that he found the plaintiff in the street 30 feet south of the crosswalk. An eyewitness testified that after being struck, the plaintiff came to rest approximately 10 feet in front of the car. The officer, who testified that he recognized the defendant, who was the president of the Omaha city council, took no pictures although he had a camera with him, and made no drawing to scale at the scene of the accident. He also testified that he examined the headlights of the defendant's car and they were elear.

The driver of a car approaching from the south proceeding north observed the plaintiff when he was leaving the curb in the crosswalk and at that time this witness was at least 100 feet south of the crosswalk. He testified the plaintiff was walking at a normal pace across the interesection. When the plaintiff stepped into the street, he could not see exactly where the defendant's car was, but then placed it north of Nicholas Street and not quite to the intersection. He saw the defendant's car strike the plaintiff. The left front headlight of the car struck the plaintiff, who was almost to the center of the street. He looked at the headlights of the car after the impact, and in his estimation they were foggy, and he could have called the police officer's attention to them but didn't remember. He did not hear any horn sounded before the impact. This witness testified that after the impact he heard the plaintiff tell the defendant that he did not look where he was going.

Defendant alleges nine assignments of error, Assignments Nos. 1 and 2 involve the overruling of motions for directed verdict made during the course of the trial; No. 3 involves the overruling of the motion for new trial; and No. 4 involves the overruling of defendant's motion for judgment notwithstanding the verdict. These are all related and will be covered by the general discussion. Assignments Nos. 5, 6, 7, and 8 complain of the giving of instructions Nos. 2, 5, 10, and 11 respectively. Assignment No. 9 involves instructing on charges of negligence, which were stricked from the plaintiff's petition upon the motion of the defendant, and is included in the objection to the trial court's instruction No. 5.

In every case, before the evidence is submitted to the jury 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 could properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. See Hickman v. Parks Construction Co., 162 Neb. 461, 76 N.W.2d 403, 62 A.L.R.2d 1040.

A motion for a directed verdict, or for judgment notwithstanding the verdict, admits, for the purpose of decision on the motion, the truth of the material and relevant evidence of the party against whom the motion is directed, and he is entitled to have every uncontroverted fact found in his favor, and to have benefit of every inference deducible from the evidence. See Palmer v. McDonald, 171 Neb. 727, 107 N.W.2d 655.

When different minds may reasonably draw...