Burhoop v. Brackhan

• Decision Date: 19 April 1957
• Docket Number: No. 34094,34094
• Parties: Hulda BURHOOP, Appellee, v. Wayne BRACKHAN, Appellant.
• Court: Nebraska Supreme Court

Page 557

82 N.W.2d 557

164 Neb. 382

Hulda BURHOOP, Appellee, v. Wayne BRACKHAN, Appellant.

No. 34094.

Supreme Court of Nebraska.

April 19, 1957.

Syllabus by the Court

1. Ordinarily a guest passenger in an automobile has the right to assume the driver thereof is a reasonably safe and careful driver and a duty to warn the driver does not arise until some fact or situation out of the usual and ordinary is presented.

2. Where independent tortious acts of two persons combine to produce an injury indivisible in its nature either tort-feasor may be held for the entire damages, not because he is responsible for the act of the other but because his own act is regarded in law as a cause of the injury.

3. Where the negligence of the driver of an automobile, in which a person is riding as a guest, is the sole proximate cause of a collision in which the guest is injured the guest cannot recover from a third person for such injury.

4. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury.

5. If there is any evidence which will sustain a finding for the party having the burden of proof in a cause the trial court may not disregard it and direct a verdict against him.

6. A motorist entering an intersection from the right is in a favored position and has the right-of-way, other things being equal, but such fact does not do away with the duty of the driver of the favored car to exercise ordinary care to avoid an accident.

7. The duty of the driver of an automobile about to enter a street intersection to look for automobiles approaching the same intersection implies the duty to see that which was in plain sight, unless some reasonable excuse for not seeing is shown.

8. In stating the issues of fact in its charge to the jury the court should submit to the jury only such issues as are in controversy under the pleadings and which find support in the evidence.

9. It is for the triers of fact to decide any issue upon all of the evidence adduced, and this is true even when the more favorable evidence relied on by a party to overcome the effect of his own self-injurious statement is found in his own testimony.

10. Insofar as McCleneghan v. Powell, 105 Neb. 306, 180 N.W. 576, is in conflict with syllabus 9 hereof the same is overruled.

Wallace W. Angle, York, for appellant.

Kirkpatrick & Dougherty, York, for appellee.

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

WENKE, Justice.

This is an appeal from the district court for York County. It involves an action wherein Hulda Burhoop sued Wayne Brackhan to recover damages resulting from injuries which she allegedly suffered in a car accident which, she claims, resulted from negligent conduct on the part of Brackhan. A jury returned a verdict in favor of Brackhan. Plaintiff thereupon filed a motion to set aside this verdict and for a new trial. The trial court sustained this motion, set aside the verdict, and granted plaintiff a new trial but gave no reason for doing so. It is from this order that this appeal was taken.

For convenience we shall herein refer to the parties as they appeared in the district court, that is, to appellant as defendant and to appellee as plaintiff.

The rule applicable here is stated in Gain v. Drennen, 160 Neb. 263, 69 N.W.2d 916, 917, as follows: 'In an action where the trial court has sustained a motion for a new trial without assigning reasons therefor, appropriate procedure on appeal is for the appellant to bring the record here with an assignment that the court erred in granting a new trial and submit it for critical examination. The duty then devolves upon the appellee to point out the prejudicial error which he contends justifies the granting of a new trial.'

In this respect we said in Anderson v. Nielsen, 162 Neb. 110, 75 N.W.2d 372, 374, that: 'Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.'

Plaintiff primarily contends the trial court erred in failing to take all questions of negligence away from the jury and submitting only the issue as to the amount of damages on the basis that defendant was, as a matter of law, guilty of negligence which was a proximate cause of the accident and resulting injuries to her.

It is true, as plaintiff contends, that she was, at the time of the accident, riding as a guest in a car being driven by her daughter, Gladys Naber, and consequently any negligence of her daughter could not be imputed to her. See Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757. Nor, under the factual situation as developed by the evidence adduced, can it be said she could be found guilty of any conduct constituting negligence which contributed to the accident and resulting injuries. See Bartek v. Glasers Provisions Co., Inc., 160 Neb. 794, 71 N.W.2d 466, 469. As stated in Bartek v. Glasers Provisions Co., Inc., supra: 'Ordinarily, the guest passenger in an automobile has a right to assume that the driver is a reasonably safe and careful driver; and the duty to warn him does not arise until some fact or situation out of the usual and ordinary is presented.'

If, as plaintiff contends, defendant was guilty of any negligence that was a proximate cause of the accident then he could be liable for, as stated in Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569, 570: 'Where the independent tortious acts of two persons combine to produce an injury indivisible in its nature, either tortfeasor may be held for the entire damage--not because he is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury.' See, also, O'Neill v. Rovatsos, 114 Neb. 142, 206 N.W. 752; Danielsen v. Eickhoff, 159 Neb. 374, 66 N.W.2d 913; Fick v. Herman, 161 Neb. 110, 72 N.W.2d 598.

'Negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do something which an ordinarily prudent person would have done under the same or similar circumstances.' Shupe v. County of Antelope, 157 Neb. 374, 59 N.W.2d 710, 715.

'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 the injury would not have occurred.' Shupe v. County of Antelope, supra.

The trial court submitted the issue, pleaded by the defendant, that any injuries or damages sustained by plaintiff were solely and proximately caused by negligent acts of Gladys Naber, the driver of the automobile in which plaintiff was riding as a guest. If there is evidence to support this issue then, of course, it was proper for the court to submit it and, based thereon, it would be proper for a jury to find for defendant. See Bergendahl v. Rabeler, 133 Neb. 699, 276 N.W. 673; Shiers v. Cowgill, 157 Neb. 265, 59 N.W.2d 407; Ricker v Danner, 159 Neb. 675, 68 N.W.2d 338. As stated in Bergendahl v. Rabeler, supra [133 Neb. 699, 276 N.W. 674]: 'Where the negligence of the driver of an automobile in which plaintiff is riding as a passenger is the sole proximate cause of a collision in which plaintiff is injured, plaintiff cannot recover from a third person for such injury.'

'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.' Remmenga v. Selk, supra [150 Neb. 401, 34 N.W.2d 761]. The same would be true with reference to a motion for a directed verdict or for judgment notwithstanding the verdict. See Stark v. Turner, supra.

'Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury.' Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 824.

'If there is any evidence which will sustain a finding for the party having the burden of proof in a cause the trial court may not disregard it and direct a verdict against him.' Long v. Whalen, 160 Neb. 813, 71 N.W.2d 496, 500.

'The verdict of a jury, based on conflicting evidence, will not be disturbed unless clearly wrong.' Griess v. Borchers, supra.

It is only 'Where the verdict of a jury is clearly against the weight and reasonableness of the evidence, [that] it will be set aside and a new trial granted.' Bentley v. Hoagland, 94 Neb. 442, 143 N.W. 465. See, also, Stewart v. City of Lincoln, 114 Neb. 362, 207 N.W. 511.

The accident wherein plaintiff was injured happened sometime between 4:45 and 5:30 p. m. on Monday, August 24, 1953, in the intersection of two county roads at a point 1 mile west and 2 miles south of Waco, in York County. It occurred when the front of a 1950 Tudor Ford, being driven by defendant, ran into the left side of a 1949 Buick sedan, being driven by Gladys Naber and in which plaintiff was riding as a guest. As a result of the impact the Ford came to an immediate stop, although the front end thereof was shoved toward the east. It remained upright and came to a stop, facing southeast, at a point in about the center of the intersection. The defendant was not hurt. The Buick, after the impact, continued on in a southeasterly direction some 54 feet and finally stopped in the ditch at the southeast corner of the intersection. It came to rest on its top with the front end facing to the northnortheast. It was in the ditch located along the south side of the east-west road. Plaintiff was thrown out of the car and apparently severely injured.

The roads creating the intersection were of equal dignity, the intersection being unprotected by...