Bonacci v. Cerra
| Decision Date | 26 April 1938 |
| Docket Number | 30240 |
| Citation | 279 N.W. 314,134 Neb. 588 |
| Parties | ANGELINA BONACCI, APPELLEE, v. THOMAS CERRA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. " An order of the trial court granting a new trial will not ordinarily be disturbed by this court, and not at all unless it clearly appears that no tenable ground existed therefor." De Matteo v. Lapidus, 116 Neb. 549, 218 N.W. 379.
2. " In passing upon a motion for new trial by a nisi prius court, it is proper to consider conflicting and improbable evidence received upon the trial, together with all other facts, circumstances, conduct and events occurring during trial, as they appeared to the trial judge." De Matteo v. Lapidus, supra.
3. " An order granting a new trial by a nisi prius court which affords a litigant an opportunity to present his claims fairly in another trial will not be scrutinized as closely as would an order putting an end to his demands." De Matteo v. Lapidus, supra.
4. Palmer v. Parmele, 104 Neb. 30, 175 N.W. 649.
5. " In this case, it is held that the verdict is excessive and, taken in connection with the evidence, appears to be the result of passion or prejudice, and a new trial is granted." Stewart v. Weiner, 108 Neb. 49, 187 N.W. 121.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action by Angelina Bonacci against Thomas Cerra for injuries sustained while riding as guest in an automobile operated by defendant. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Crofoot, Fraser, Connolly & Stryker, for appellant.
O'Sullivan & Southard and George H. Merten, contra.
Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.
This is an action under the Nebraska automobile guest statute. Angelina Bonacci, as plaintiff, seeks a recovery for personal injuries inflicted upon her by the defendant, Thomas Cerra, while she was a guest riding in an automobile then operated by him. It is alleged the injuries thus sustained by plaintiff resulted from gross negligence of defendant in operating his automobile. In his answer defendant denies the commission of negligence, and alleges that the injuries in suit were the result of an accident wherein the automobile in which plaintiff was riding left the highway because of a punctured right rear tire, and that the defendant was guilty of no gross negligence in connection therewith.
This is a companion case to Antonio Bonacci v. Thomas Cerra, ante, p. 476, 279 N.W. 173. Angelina and Antonio are wife and husband, and the two cases referred to arose out of the same accident. However, as finally presented to the triers of fact, in issues and proof these cases are materially and substantially different.
As bearing on the real interests of the parties to this litigation, it may be said that Bonacci and Cerra were friends in the land of their nativity. Both migrated to this country some years ago. Here the friendship formerly existing was renewed and continued. On August 4, 1935, Mr. and Mrs. Bonacci, as the invited guests of Mr. and Mrs. Cerra, left Omaha with the latter on a vacation trip to Colorado. Mr. Cerra furnished the car, the necessary gas, oil and maintenance for the car, at his own expense. On August 15, 1935, about 1 o'clock p. m., on the return trip, in Cerra's automobile then driven by him, an accident occurred about five miles east of Grand Island on U.S. Highway No. 30. No other automobile was involved.
The following is an excerpt from the bill of exceptions, viz.: Thomas Cerra testified, in answer to questions propounded by his own counsel: This evidence was received without objection.
The petition, originally filed in this case on October 18, 1935, charged the negligence of the defendant substantially in the identical manner as set forth in Bonacci v. Cerra, ante, p. 476, 279 N.W. 173, viz.: That the defendant operated said automobile at an excessive and illegal rate of speed, to wit, about 70 miles an hour, and in such a grossly negligent, careless and reckless manner that he drove said automobile off the right side of said highway pavement, then drove said automobile back onto said highway pavement to the left of the center of said highway pavement, then drove said automobile to the right side of the center of said highway pavement and then drove said automobile to the left side of said highway pavement across the center thereof, and then in a grossly negligent, careless and reckless manner drove said automobile off said highway pavement upon and over the left dirt and gravel shoulder along said paving, etc. Further, that from the point where defendant's automobile first left the pavement to the point where said automobile overturned was approximately 150 yards, etc.
It also appears that the petition in Bonacci v. Cerra, ante, p. 476, 279 N.W. 173, and the original petition of plaintiff in the instant case were prepared by the same attorney, substantially at the same time, after a consultation with Antonio Bonacci and Angelina Bonacci, his wife, the plaintiff herein, in which he was aided by an unnamed interpreter whose ability is not questioned by the record. These petitions so drawn were sworn to by these parties on the 15th and 17th days of October, 1935, respectively, and on the 16th and 18th days of October, 1935, respectively, the same were filed. It may be said that the petitions thus prepared are not substantially inconsistent with the depositions of these parties taken on February 29, 1936.
In speaking of the movement of the car at the time of the accident, Antonio Bonacci in his deposition says, in part:
Angelina Bonacci was present when her husband's deposition was taken, and in her deposition her first answered question was: As to the movement of the automobile at the time of the accident, she said, in part:
It should be noted that the depositions were taken without the aid of an interpreter; that no reference was made therein to the removal of the right hand of the driver from the steering wheel, or the turning of his face to the right and his eyes from the road. Further, the reaching for a cigaret, or the lighting of the same, were not mentioned, and neither was any reference made to a speedometer, but all statements as to speed were mere estimates of the deponents.
The facts of the accident here in suit have been presented to trial juries three times. The first was in the trial of the case of Antonio Bonacci v. Cerra, resulting in a verdict and judgment for the defendant. The second was the presentation of the case of Angelina Bonacci v. Cerra, the first trial of which resulted in a verdict for the defendant, as to which a motion for new trial was sustained by the trial court, and the second trial resulted in a verdict and judgment, from which this appeal is prosecuted. Prior to the second trial plaintiff's petition was amended by changing the rate of speed alleged from 70 miles an hour to 80 miles an hour, and striking therefrom all portions thereof as hereinbefore italicized. The testimony as received in each of the three cases is embraced in the bill of exceptions allowed in the instant case.
In the first trial the negligence upon which a claim to recovery was based was excessive speed. The speedometer then appears for the first time, and the rate of speed, a matter of estimate when Bonacci's deposition was taken, becomes definite and fixed. He now testifies that he observed the speedometer just before the accident and it showed 80 miles an hour. Defendant Cerra, at the trial of Antonio Bonacci's case, testifying as to the accident, said: "It just happened that the car got out of my control, and went over in the ditch all at once. * * * Well, the first I know I had my hands on the wheel, and the car turned over on the side, that is all; that is all I remember.
Mrs Bonacci was present at this trial but did not testify. Bonacci and wife were at this time...
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