Borcherding v. Eklund

• Decision Date: 21 November 1952
• Docket Number: No. 33195,33195
• Citation: 156 Neb. 196,55 N.W.2d 643
• Parties: BORCHERDING v. EKLUND et al.
• Court: Nebraska Supreme Court

Page 643

55 N.W.2d 643

156 Neb. 196

BORCHERDING v. EKLUND et al.

No. 33195.

Supreme Court of Nebraska.

Nov. 21, 1952.

Syllabus by the Court.

1. If a motion for directed verdict, made at the close of the evidence in a case, should have been sustained for want of evidence to support a verdict in favor of the party against whom made it is the duty of the court, on motion for judgment notwithstanding the verdict timely made, to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.

2. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

3. The duties and obligations which attend a motorist when he approaches a stop sign erected pursuant to city ordinance are the same as those which attend when he approaches one erected pursuant to statute or statutory rules of the road.

4. A driver of a vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be obviously dangerous for him to proceed across the intersection.

5. Where the driver of a car approaching a through street or highway stops and looks and sees an approaching vehicle on the favored street or highway but erroneously judges its speed or distance or for some other reason assumes he can proceed with safety and not have a collision, the question of whether or not his conduct in doing so makes him guilty of contributory negligence is usually one for the jury.

6. It is the duty of the court to instruct the jury upon the issues presented by the pleadings and evidence whether requested to do so or not.

7. In an action for damages for personal injuries which are permanent and have impaired the earning capacity, damages for pecuniary loss by reason of decreased earning power are to be based on life expectancy immediately before the injury and for future mental and physical suffering on probable expectancy of life in plaintiff's injured condition.

8. The only future pain and suffering which a jury is entitled to consider in the assessment of damages are such as the evidence shows with reasonable certainty will be experienced.

9. Damages for permanent injuries cannot be based upon mere speculation, probability, or uncertainty, but must be based upon competent evidence that permanent damages, clearly shown, are reasonably certain as a proximate result of the injury.

10. A jury should be fully and fairly informed as to the various items of damages which it should take into consideration in arriving at its verdict. In this respect it is the duty of the trial court to instruct as to the proper basis upon which damages are to be assessed for each such item.

11. Insofar as our holding in Chambers v. Chicago, B. & Q. R. R. Co., 138 Neb. 490, 293 N.W. 338, is in conflict with the foregoing the same is overruled.

12. The violation of a safety regulation established by statute or ordinance is not negligence as a matter of law, but may be considered in connection with all of the other evidence in the case in deciding the issue of negligence.

Sidner, Lee & Gunderson and George E. Svoboda, Fremont, Shackelford, Spittler & Emmert, Omaha, for appellants.

Spear & Lamme, Fremont, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

Ed Borcherding brought this action in the district court for Dodge County against C. Edwin Eklund and Theodore L. Wallingford for the purpose of recovering damages for injuries to his person and his car which resulted from an accident involving his and defendant Eklund's cars. The basis on which he claims the right to recover is that defendant Wallingford, while driving the Eklund car, operated it in a manner that was negligent and that such negligent operation was the proximate cause of the accident which resulted in his damages. A jury returned a verdict in favor of plaintiff. The trial court entered a judgment thereon. Defendants thereupon filed an alternative motion asking for either a new trial or judgment notwithstanding the verdict. This motion was overruled and defendants appealed therefrom.

Appellants contend there is not sufficient evidence in the record upon which to base a finding of negligence on their part and that either their motion for directed verdict or for a judgment notwithstanding the verdict should have been sustained.

In this respect the court's instruction No. 1 submitted the following: '* * * that defendant Eklund's car operated by defendant Wallingford, who was the agent of defendant Eklund and drove with Eklund's consent, was driven northward upon Nye Avenue negligently, carelessly and recklessly, and charges particularly that defendant's car was driven at a high and dangerous rate of speed, greater than was reasonable and proper under the conditions, and in disregard of the safety of other vehicles; in failing to have defendant's car under proper control and in failing to keep a proper lookout for traffic.'

In considering this assignment of error the following rules, approved in Pavlicek v. Cacak, 155 Neb. 454, 52 N.W.2d 310, 312, are applicable:

"If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.' Hamilton v. Omaha & C. B. St. Ry. Co., 152 Neb. 328, 41 N.W.2d 139, 141.

"In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Smith v. Platte Valley Public Power & Irrigation Dist., 151 Neb. 49, 36 N.W.2d 478.'

Admittedly the accident happened on Saturday, April 7, 1951, about 5:15 p. m., in the intersection of Seventeenth Street and Nye Avenue in the city of Fremont, Nebraska. It happened when a 1949 Chevrolet Tudor sedan, owned by Eklund and being driven by his employee Wallingford, ran into a 1942 Chevrolet Tudor sedan owned by appellee. At the time of the accident appellee was driving his car, then occupied by himself and his wife, east on Seventeenth Street. Appellant Wallingford, while in the performance of his duties as Eklund's employee, was at the same time driving the Eklund car north on Nye Avenue. The collision of the two cars occurred in the southeast quadrant of the intersection. The appellee's car, at the time it was hit, was just south and east of the center of the intersection. The Eklund car ran head-on into the center of the right side of appellee's car. As a result of being hit appellee's car slid sideways stopping in the northeast corner of the intersection with its left-rear wheel over the curb and the front of the car facing generally east but somewhat to the south. The Eklund car stopped about four feet east of the center of the intersection about on a line with the center of Seventeenth Street and facing generally to the east. Both cars remained upright. The right side of appellee's car was badly smashed, the front seat was broken loose from its track, and the left-rear wheel, which was of steel, was badly damaged.

Nye Avenue runs north and south. It has a brick surface extending from curb to curb, which is 36 feet. This brick surface covers the intersection and extends 7 feet 8 inches into Seventeenth Street, which runs east and west. Seventeenth Street has a cement surface from curb to curb which is a distance of 30 feet. Nye Avenue is a through street. There is a stop sign on Seventeenth Street 20.4 feet west of the west curb of Nye Avenue. The distance on Nye Avenue from the south curb of Seventeenth Street to the north curb of Sixteenth Street, which is the first east-west street to the south, is 430 feet. On approaching Nye Avenue from the west on Seventeenth Street the view to the right, or south, is unobstructed, while to the left, or north, there are bushes and shrubs which obstruct the view in that direction. These bushes and shrubs make it necessary to approach almost to the west curb of Nye Avenue in order to see traffic coming from the north.

Appellee, who was 62 years of age, testified that he and his wife left their home that day to do some shopping; that they drove their car for that purpose; that they proceeded south on Colson Street, on which their home is located, to Seventeenth Street and then east on Seventeenth Street; that Colson Street is just one block west of Nye Avenue; that he was driving the car and was familiar with Seventeenth Street, having often driven thereon; that he knew there was a stop sign on Seventeenth Street just before it intersected Nye Avenue; that at the time it was drizzling, with occasional snow; that the streets were wet but not icy; that he was using his windshield wiper; that as he approached Nye Avenue and was about one-fourth of a block west of the intersection, he looked to the south and saw a car coming; that the car coming from the south was beyond Sixteenth Street and about two blocks away; that he then approached the stop sign and stopped; that he then again looked to the south and saw this car approaching just beyond Sixteenth Street; that he started up, putting his car in low, and went slowly forward because the bushes and shrubs blocked his view to the north; that when he could see to the north he looked and seeing no traffic again...