Beranek v. Petracek

• Decision Date: 20 June 1969
• Docket Number: No. 37124,37124
• Citation: 169 N.W.2d 275,184 Neb. 516
• Parties: Anna BERANEK, Individually and as Assignee of L. J. Beranek, Appellee, v. Thomas D. PETRACEK, Appellee, Impleaded with William D. Warner, Appellant.
• Court: Nebraska Supreme Court

Page 275

169 N.W.2d 275

184 Neb. 516

Anna BERANEK, Individually and as Assignee of L. J. Beranek, Appellee, v. Thomas D. PETRACEK, Appellee Impleaded with William D. Warner, Appellant.

No. 37124.

Supreme Court of Nebraska.

June 20, 1969.

Syllabus by the Court

1. A tort-feasor is answerable for all the consequences that, in the natural course of events, flow from his unlawful or negligent acts, although those results are brought about by the intervening agency of others, provided the intervening agents were set in motion by the primary wrongdoer, or were the natural consequences of his original wrongful act.

2. The proximate cause of an injury is that cause which, in the natural and continuous sequence, unaccompanied by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

3. It is not sufficient that the negligence charged furnishes only a condition by which the injury is made possible, for it such condition causes an injury by the subsequent independent act of a third person, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.

4. A party should not be permitted to cross--examine a witness as to a matter foreign to the scope of the direct examination. The rule of strict cross-examination has been adopted and is in force in this state.

5. Violation of the strict rule of cross-examination will not be considered ground for reversal unless it clearly results in prejudice to the substantial rights of the party complaining.

6. The admission or rejection of photographs in evidence is largely within the discretion of the trial court. Error may not be predicated thereon in the absence of a showing of an abuse of discretion.

7. Instructions to the jury must be considered as a whole, and when thus considered, if the law is correctly stated and the case fairly submitted, and the jury could not have been misled, a claim of prejudicial error in the instructions is not available.

Cobb, Swartz & Wieland, Lincoln, for appellant.

Marti, O'Gara, Dalton & Bruckner, Lincoln, Boland, Mullin, Walsh & Cooney, Omaha, for Beranek.

Kennedy, Holland, DeLacy & Svoboda, Omaha, for Petracek.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is an action for personal injuries arising out of an automobile accident on July 4, 1967. The plaintiff was a guest passenger in a car owned and operated by the defendant Thomas D. Petracek. The accident purportedly happened when the defendant, William D. Warner, drove his automobile into a passing lane being used by Petracek, causing the latter to swerve to his left and into a bridge abutment, and causing severe injuries to the plaintiff which made her a permanent quadriplegic. The jury returned a verdict for the plaintiff in the amount of $65,000. Motions for a new trial were filed by both defendants which were overruled. The defendant Warner alone appeals.

Petracek and his wife had been visiting the plaintiff, his grandmother, in Milligan, Nebraska. They decided to visit an aunt in Fremont and invited the plaintiff to accompany them which she did. Petracek drove the car with his wife in the front seat with him and the plaintiff riding in the rear seat. The accident occurred on U.S. Highway No. 77 about 1.3 miles south of Ceresco shortly after noon. The road was dry, the weather clear, and visibility was good. Shortly before the accident, he came upon three other automobiles traveling north. They were about two car lengths apart and traveling from 50 to 55 miles per hour.

Petracek testified that he could see at least a mile down the road when he pulled out to pass the car immediately in front of him. He said that after passing the first car he undertook to pass the second car driven by Warner. When the front of his car was even with the front door of the Warner car the latter unexpectedly pulled into the passing lane. Petracek continued on until hitting the abutment of the bridge. The negligence of Petracek is not important here since the judgment against him has become final. It is only to the extent that Petracek's conduct bears upon the alleged negligence of Warner that it is pertinent in this case.

Warner testified that before attempting to pass the car ahead of him he looked in his rear vision mirror and side view mirror and saw the Petracek car at the rear of the line of cars. He said the latter car was 'plenty far away' but he could not estimate its speed. He thereupon looked through the mirrors again when he was in the passing lane and saw the Petracek car start around the car immediately behind him. He said he turned on his directional signal as he turned into the passing lane. He testified that his car was bumped or tapped twice from behind but he did not thereafter look back. He said he was a block from the bridge when his car was bumped.

The testimony of Petracek is that the front of his car was even with the front door of the Warner car when the latter turned into the passing lane, causing him to swerve to the left and off the pavement. The testimony of Warner is that he was completely in the passing lane when Petracek turned into the passing lane to pass the first car ahead of him. This creates a material conflict in the evidence. If the jury found, as it did, that Warner turned into the passing lane when it was occupied by Petracek without first determining that he could use the passing lane with reasonable saffety, it is evidence of negligence. Section 37--746.04, R.R.S.1943. A violation of the foregoing statute is evidence of negligence. Petersen v. Schneider, 153 Neb. 815, 46 N.W.2d 355.

Giving the evidence of the plaintiff its most favorable construction, as we are required to do, the jury could find that Petracek was about to pass the Warner car and that Warner turned into the passing lane causing Patracek to swerve off the pavement. The jury could find that Warner failed to ascertain that Petracek was back far enough and driving at such a speed that Warner could pass with reasonable safety. Where the Petracek car was when Warner entered the passing lane is in dispute. Warner testified that after he entered the passing lane he proceeded straight ahead without looking back. Under these circumstances the negligence of Warner was a question for the jury. The jury could well find that but for the negligent conduct of Warner, Petracek would have safely passed the cars traveling the righthand side of the highway. The trial court did not err in submitting the question of Warner's negligence to the jury.

Warner assigns as error the failure of the trial court to sustain objections to the cross-examination of Warner when he was on the witness stand. Warner testified that he did not apply his brakes after entering the passing lane, that he was traveling 55 or 60 miles per hour, and that he never reduced that speed. He also...