Bedford v. Herman
| Decision Date | 19 March 1954 |
| Docket Number | No. 33493,33493 |
| Citation | 63 N.W.2d 772,158 Neb. 400 |
| Parties | BEDFORD v. HERMAN et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Negligence is never presumed or inferred from the mere happening of an accident.
2. Circumstantial evidence sufficient to submit an issue of negligence to a jury must be such that a reasonable inference arises showing that the person charged was negligent and that such inference is the only one that can be reasonably drawn therefrom.
3. A photograph is properly admissible as evidence if it be shown that it is a true and correct representation of the place or subject it purports to represent at a time pertinent to the inquiry.
4. The wrongful refusal of the trial court to admit photographs into evidence is not prejudicial error if they, together with evidence received, fail to establish a cause of action.
5. Where defendant pleads a counterclaim and upon the conclusion of plaintiff's evidence moves for and procures a dismissal of plaintiff's cause of action without first withdrawing his counterclaim, he thereby waives it.
Dryden, Jensen & Dier, Kearney, L. R. Bowker, Lawrence R. Brodkey, Omaha, for appellant.
Gross, Welch, Vinardi & Kauffman, Omaha, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Plaintiff brought this action against the defendants for damages resulting from a highway accident. The trial court directed a verdict for the defendants and plaintiff appeals.
The plaintiff was the owner of a tractor and refrigerator trailer. The defendant Herman was the owner of a tractor and tank trailer. On October 9, 1951, plaintiff's tractor and trailer was being driven north on U. S. Highway No. 275 by Pete Klassen, plaintiff's driver. An alternate driver, Norman Raymond, was sleeping at the time of the accident. The Herman tractor and trailer was being driven south on the same highway by Othe Middaugh. For convenience we shall refer to plaintiff's tractor and trailer as the refrigerator transport and that of the defendant Herman as the oil transport.
The collision occurred about 4:30 a. m. The pavement was 18 feet 4 inches wide and free from snow, ice, or moisture. Plaintiff's refrigerator transport was 47 feet 3 inches long. Its tractor had two driving axles with eight wheels on its rear. It appears that in some manner the left driver wheels on the refrigerator transport tractor collided with the rear-wheel-trailer assembly on the oil transport. It was dark at the time of the accident, plaintiff's driver testifying that each was driving with dimmed lights.
The accident happened 9 miles south of Council Bluffs, Iowa. Plaintiff's refrigerator transport came down a long hill at the foot of which the road curves to the right and straightens out on a comparatively level terrain. The driver said he saw the oil transport approaching about 200 feet away as he came around the curve. He saw nothing unusual as they approached each other. The front ends of the transports met and passed without mishap. There is no evidence by plaintiff's driver that defendant's transport crossed the center of the road. There is no evidence by the drivers that either violated any rule of the road. The damage of the two transports shows, however, that the driver wheels of plaintiff's tractor collided with the tandem wheels on the rear of defendant's trailer.
Plaintiff produced evidence of the location of the transports after the accident and the location of various tire marks at the time of and immediately following the collision. In construing the evidence most favorable to the plaintiff, the tire marks indicate that the refrigerator transport did not approach closer than 9 to 12 inches of the center line of the highway. Plaintiff's evidence also indicates by the tire marks on the pavement that the oil transport did not cross the center line. It did parallel it as close as 4 inches on its own side of the road for some distance at and following the point of impact. There is no evidence that the transport was wider than its wheels to the extent that it played any part in the accident.
The evidence in the record can be summed up as follows: No eyewitness testified that either vehicle crossed over the center line of the highway immediately before or at the time of the accident. The physical facts, consisting of marks on the pavement, are not...
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Estate of Price, In re
...that such inference is the only one that reasonably can be drawn therefrom." In support of that statement the case of Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772 (1954), was cited. This, of course, was a case decided before Davis v. Dennert, supra, which overruled that rule of law. We, t......
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Mittlieder v. Chicago and Northwestern Railway Co.
...with the inference of negligence on the part of the party charged, it is insufficient to carry the case to the jury.\' Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772." See also, Petracek v. Haas O. K. Rubber Welders, Inc., 176 Neb. 438, 126 N.W.2d 466, 470 More recently, in Raff v. Farm Bur......
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Wolstenholm v. Kaliff
...that the person charged was negligent and that such inference is the only one that reasonably can be drawn therefrom. Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772. The physical facts and the inferences appellants would have us draw cannot meet either Appellee made a motion at the close of......
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Grand Island Grain Co. v. Roush Mobile Home Sales, Inc.
...it is not sufficient to carry the case to the jury. Graves v. Bednar, 171 Neb. 499, 107 N.W. 2d 12, 15 (1960); Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772, 774 (1954); Ford Motor Co. v. Mondragon, 271 F.2d 342, 345 (8 Cir. 1959); Wray M. Scott Co. v. Daigle, supra, pp. 108-109 of 309 We ......