Bramhall v. Adcock
| Citation | 162 Neb. 198,75 N.W.2d 696 |
| Decision Date | 16 March 1956 |
| Docket Number | No. 33860,33860 |
| Parties | Gloria Ann BRAMHALL, a minor of the age of 19 years, by Carleton P. Barney, Sr., her next friend, Appellee, v. Orie Cash ADCOCK and Edward W. Swank, Appellants. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court.
1. It is prejudicial error for the district court to include in its instructions to the jury allegations of fact made in a pleading in the cause which are without evidence tending to establish them.
2. It is error to charge the jury that allegations of negligence made in a pleading may be considered by it in arriving at a verdict in the cause and also to instruct the jury in effect that such allegations should be disregarded by it.
3. In such a situation as that described above the error is prejudicial, unless it is apparent from the record that the jury was not misled by the charge, because it is impossible to know which of the directions the jury followed.
4. It is a general rule, subject to exceptions not applicable to this case, that it is negligence as a matter of law for a motorist to drive an automobile on a public highway, at any time, at a speed or in such manner that it cannot be stopped or its course changed in time to avoid a collision with an object or obstruction discernible within his range of vision in the direction he is traveling.
5. The basis of the foregoing general rule is that the driver of an automobile is legally and mandatorily obligated to keep such a lookout that he can see what is plainly visible before him and to operate his automobile in such a manner that he can stop it and avoid collision with any object in front of him.
6. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which it would not have occurred.
7. An efficient intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury.
8. The presence of smoke, snow, fog, mist, blinding headlights, or similar elements is not generally recognized as an intervening cause but as a condition which imposes upon the operators of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with surrounding circumstances.
9. The presence of ice upon a highway is not generally an independent, intervening causal factor that relieves an automobile operator from responsibility for the result of his negligence.
10. In order for an accident to be solely attributable to an icy condition of the highway, it must be made evident that the accident would in some manner have occurred because of the ice, even if the motorist had not been negligent.
Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellants.
Burbridge & Burbridge, H. T. White, Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
The subject of this litigation is a claim for damages made by appellee against appellants because of injuries she sustained by the collision of an automobile in which she was a passenger and motor vehicles owned and negligently operated by appellants.
The substance of the cause of action alleged by appellee is as follows: She was traveling as a guest of Carleton P. Barney, Jr., hereafter identified as Barney, in an automobile owned and operated by him at about 11:40 a. m., January 4, 1953, towards the west on U. S. Highway No. 6 near One Hundred Eighth and Dodge Streets in Douglas County. Appellant Adcock, called Adcock herein, was then traveling on the highway near that location towards the east in an automobile owned and operated by him. He drove his car north across the highway into the north lane thereof nearest the center of the highway intended for westbound traffic, in front of and into the automobile in which appellee was being transported, and caused a head-on collision of the cars. Appellant Swank, spoken of herein as Swank, was operating his automobile towards the west near the location described on the inner or south lane of the highway intended for westbound traffic and it collided with the rear of the automobile in which appellee was a passenger at about the identical time the car of Adcock collided with the front of it. The car occupied by appellee was substantially destroyed and she was seriously injured as a result of the collisions which were caused, as she alleged, by the concurrent negligence of appellants. Adcock was charged with operating his car on the wrong side of the highway without keeping a proper lookout, driving it into the car in which appellee was a passenger, and failing to use reasonable care as the operator of a motor vehicle by the exercise of which he could have avoided causing injury to appellee.
Appellee asserted that Swank was negligent in failing to keep a proper lookout for the car in which appellee was traveling and which was directly in front of the Swank car in the inner lane of the north half of the highway, in failing to have his car under control, in operating it at an improper distance behind the car of Barney so that Swank could not stop his car within the distance between the cars, and in failing to stop his car before it collided with the Barney car.
The claims of appellee as to the manner and cause of the accident were denied by appellants. Appellants pleaded that the proximate cause of the accident involved in this case was the negligence of Johnson and Barney.
Adcock admitted that he was driving east on the highway at about the time and place of the accident involving his car and the car of Barney. The version of the happening as pleaded by Adcock is that Chester Johnson, hereafter referred to as Johnson, was going west in his automobile in the inner lane of the highway for westbound traffic a short distance ahead of the Barney car. The highway was in that location downgrade as it extended west. The Johnson car encountered ice on the surface of the highway. This caused it to skid and go out of control of the driver. As a result thereof it traveled from the north half of the highway to and upon the south half thereof and its left rear side and end collided with the left front of the eastbound Adcock car. The steering apparatus of the Adcock car was disabled and the collision caused it to travel to the northeast onto the north part of the highway and it collided with the Barney car. Adcock asserted that he was traveling on the extreme right or the proper side of the highway when his car was struck by the Johnson car and that the accident was unavoidable on his part.
Swank pleaded that he was driving his car towards the west, near the place described by appellee, on the north part of the highway a considerable distance to the rear of the Barney car as it moved towards the west. Swank reached the crest of the hill and encountered the automobiles of Adcock and Johnson which had been involved in an accident on the slippery part of the road and the semi-trailer truck which had partly jackknifed and the rear of the trailer was moving towards the south. Swank applied the brakes on his car, attempted to stop, but was unable, without negligence on his part, to fully stop his car before it collided with the rear of the Barney car. Swank asserted that the accident was unavoidable on his part.
The trial of the case resulted in a verdict for appellants and a judgment dismissing the case. A motion for new trial was sustained and the judgment of dismissal was vacated. This appeal is from the order of the trial court granting a new trial of the case.
The case of Barney v. Adcock, Neb., 75 N.W.2d 683, concerned the identical accident that is the basis of the present case. The plaintiff in the former case was the owner and operator of the automobile in which appellee in this case was a passenger. The evidence in the former case is outlined in the opinion. The proof in each case is in all material respects identical except the part referring to the injuries and losses claimed by the respective plaintiffs. Reference to the evidence will be made to the extent required in the discussion of matters necessary to a decision in this case. The problem presented by the appeal is whether or not there was a legal reason for awarding appellee a new trial of the case.
The trial court gave no reason for its action in sustaining the motion of appellee and granting her another trial of the case. The duty on this appeal is on the appellee to designate the error she contends exists in the record that justifies the action of the trial court. If there is a legal reason therefor it must exist in the record. Such a record will be scrutinized as closely and critically as an order denying a new trial. Pongruber v. Patrick, 157 Neb. 799, 61 N.W.2d 578; Vielehr v. Malone, 158 Neb. 436, 63 N.W.2d 497.
Appellee argues in support of the order of the trial court awarding her new trial of the case that there was prejudicial error at the trial because of the statement in instruction No. 2 that: 'This defendant (Adcock) claims that the negligence of Mr. Barney consisted of his driving his automobile in such a manner that he could not stop or slow his automobile or steer the same to his right and avoid an accident; and * * * this defendant asks that the plaintiff's petition be dismissed' and because of the statement in instruction No. 3 that: 'This defendant (Swank) further says that the contributing cause to the accident was negligence on the part of plaintiff's driver, Carleton P. Barney, Jr., in driving his car in such a manner that he was unable to slow or stop his automobile or steer same in such a manner as to avoid an accident; and this defendant asks that the plaintiff's petition be dismissed.'
It is not claimed that these were not a correct interpretation of allegations of the answers of appellants but total absence of...
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