Brooks v. Thayer County
| Decision Date | 10 April 1934 |
| Docket Number | 28885 |
| Citation | 254 N.W. 413,126 Neb. 610 |
| Parties | GEORGE BROOKS, APPELLANT, v. THAYER COUNTY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Thayer county: ROBERT M PROUDFIT, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. A county cannot be held to be an insurer of those who have occasion to use a county bridge or road.
2. In this state the strict rule of cross-examination has been approved, to the effect that a party has no right to cross-examine any witness except as to facts and circumstances connected with matters stated in his direct examination; if he wishes to examine him as to other matters, he must make the witness his own, calling him as such in the subsequent progress of the case.
3. Under section 20-853, Comp. St. 1929, 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.
4. It is the duty of the trial court to state the issues raised by the pleadings and supported by evidence.
5. " Where two conflicting instructions are given on a question, one containing an incorrect, and the other a correct, statement of the law, the latter will not cure the former." Koehn v. City of Hastings, 114 Neb. 106, 206 N.W. 19.
6. " Where plaintiff has made a prima facie case in an action for negligence resulting in personal injuries without disclosing any negligence on his part, the failure to instruct the jury that contributory negligence as a defense must have been the proximate contributing cause of the injuries may be prejudicially erroneous even in absence of a request for such an instruction." McCulley v. Anderson, 119 Neb. 105, 227 N.W. 321.
Appeal from District Court, Thayer County; Proudfit, Judge.
Action by George Brooks against the County of Thayer. From an adverse judgment, plaintiff appeals.
Judgment reversed, and cause remanded for new trial.
Barnes & Rain, for appellant.
Baldwin & Baldwin, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and LANDIS, District Judge.
This is an action for damages for personal injuries and injuries to a truck. Plaintiff appeals from a judgment based upon a verdict against him.
The accident occurred about 8 o'clock the night of September 6, 1931, at a bridge in the public road two miles east and about three-quarters of a mile north of Bruning, in Thayer county. Plaintiff was driving a truck loaded with two cubic yards of gravel. He had just been employed to haul gravel for the purpose of surfacing a road. This was his first trip over the road.
The petition alleged that at the place in question the county had built a bridge at an abrupt angle to the road, necessitating a sharp turn to approach it from the south, and had permitted the approach to be unguarded either by posts or rails and unmarked by any warning sign indicating that the road made a sudden turn to the northeast across the bridge; that, when approaching the bridge from the south and driving at a lawful rate of speed and in a careful manner, plaintiff drove his truck into the ditch on the west side of the bridge, injuring him and his truck; that defendant's powers are exercised by a board of county commissioners having general supervision over public road and bridges with the duty to maintain them in a reasonably safe condition; that the damage was proximately caused by the insufficiency of the highway, the absence of warning signs, the lack of guard-rails or posts, and the failure to use ordinary care to maintain the highway in a reasonably safe condition.
In its answer defendant admitted the exercise of supervision over the road in question by the county board and the duty of maintenance in a reasonably safe condition, but denied that defendant permitted the approach to be unmarked and unguarded, alleged there was no occasion for guards or notice in such approach, that the bridge was in the usual and ordinary condition of bridges, was not in a dangerous condition, and in general traversed the other material allegations of the petition not admitted; for further defense the answer pleads that plaintiff was driving in a reckless and careless manner, at a dangerous and excessive rate of speed, that plaintiff's truck was not in proper mechanical condition for travel upon the public roads, and that the injuries to plaintiff or to his truck were the result of his own negligence in operating it upon the road.
The evidence shows that the road was an ordinary, ungraveled north and south public road. A creek crossed it from the southeast to the northwest. The bridge was called a 16-foot bridge. Its roadway was actually 15 feet 9 inches wide. As approached from the south, it was built at an angle of 40 degrees and 22 minutes east of a line due north so as to cross the creek at right angles and save length. The bridge (and the approach from the south for a distance of 39 feet) ran almost northeast and southwest. 309 feet south of this 39 feet of the approach the road veers 3 degrees and 5 minutes west, so that 39 feet from the bridge, as approached from the south, there is a turn of 43 degrees and 27 minutes toward the east. There was no warning sign indicating a bridge or change of direction in the roadway. There was no wing or rail guarding the approach to the southwest corner of the bridge. This had been carried away the night before when a car driven by some young men went into the creek at this point, and had not been replaced. Plaintiff and his truck failed to keep the roadway and drove off the approach, going down the bank into the creek at the left of the bridge, injuring both.
Plaintiff assigns that the evidence is insufficient to sustain the verdict, that the verdict is contrary to law, and that the court erred in not directing a verdict for plaintiff. We think it will be of little value to analyze the conflicting evidence. We satisfy ourselves by saying that to hold with plaintiff on these points would be to declare in effect that the county is an insurer of the safety of those who travel its public roads. A county cannot be held to be an insurer of those who have occasion to use a county bridge or road. Johnson County v. Carmen, 71 Neb. 682, 99 N.W. 502; Frickel v. Lancaster County, 115 Neb. 506, 213 N.W. 826.
Under errors of law occurring at the trial, plaintiff charges that the trial court erred in permitting plaintiff's witness, John Gerdes, on cross-examination, to give his opinion that plaintiff's truck was traveling 35 or 40 miles an hour before it reached the bridge. Gerdes had testified on direct examination that he lived north of the bridge, that he was in his yard a little less than a quarter of a mile away from the bridge and had seen the lights of a car coming from the south; that his attention was attracted to a crash, and he went down to the bridge, where he found plaintiff and took him to a doctor. The rest of his direct testimony relates to the bridge and conditions surrounding it and the accident. He was not interrogated in chief as to knowledge of the speed of the car. On cross-examination he was allowed, over objection, to testify to his opinion of the speed of the car "before it reached the bridge." This opinion did not go to the speed at which it was traveling near the bridge, because later he testified that trees in his pasture obscured the bridge so it could not be seen. As the bridge was between him and the approach to the bridge from the south, of course he could not see that either. He was evidently testifying on cross-examination to the speed a considerable distance south of the bridge, perhaps a quarter or half mile away, of a car coming almost directly toward him, basing his judgment upon the movement of the lights alone. It appears to be merely a guess. Even if the car had been going 35 or 40 miles an hour when he saw it first at a distance of a half mile, or could have continued at that speed until it disappeared from his view, it might have slackened its speed before his attention was attracted by the crash when it went off the approach. But the objections were that no foundation had been laid and that this was not proper cross-examination. His competency to testify to the speed is such that his testimony must be admissible for what it is worth, but his testimony is not clearly cross-examination. Plaintiff had testified he was going 20 to 25 miles an hour. Gerdes had not testified to the speed on his direct examination. Plaintiff argues that plaintiff had a legal right to have his testimony as to speed refuted, if refutable, by evidence on behalf of defendant; and that, if defendant wished to use plaintiff's witness for that purpose, it should have made Gerdes its own witness.
"According to the orthodox rule, which exists in England, Canada and a number of jurisdictions in the United States, when a party produces a witness who is sworn and examined, the opposing party is not confined in his cross-examination to the matters upon which the witness is examined in chief, but may extend the cross-examination to every issue in the case." 28 R. C. L. 603, sec. 193.
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