Burkamp v. Roberts Sanitary Dairy

• Decision Date: 18 May 1928
• Docket Number: 25805
• Citation: 219 N.W. 805,117 Neb. 60
• Parties: ALBERT H. BURKAMP, APPELLEE, v. ROBERTS SANITARY DAIRY, APPELLANT
• Court: Nebraska Supreme Court

219 N.W. 805

117 Neb. 60

ALBERT H. BURKAMP, APPELLEE, v. ROBERTS SANITARY DAIRY, APPELLANT

No. 25805

Supreme Court of Nebraska

May 18, 1928

APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Reversed.

REVERSED.

Ziegler & Dunn, George W. Becker and J. W. Weingarten, for appellant.

Leon Stalmaster & Beber, contra.

Heard before GOSS, C. J., ROSE, THOMPSON, EBERLY and HOWELL, JJ and REDICK and WHEELER, District Judges.

OPINION

REDICK, District Judge.

The appeal in this case was heard before the supreme court commission, division No. 1, and an opinion rendered reversing the judgment of the lower court for error in the instructions. That opinion was approved by the court; upon which the plaintiff, appellee, filed a motion for rehearing, which was granted, and the case has been heard anew by the court. The action is for damages for personal injuries to plaintiff and damage to his automobile, growing out of a collision with the milk wagon of defendant driven by its servant on one of the boulevards of the city of Omaha. Plaintiff recovered a judgment in the court below, and defendant appeals.

Among the grounds of negligence alleged are: (1) That defendant's servant, at the time of the accident, was driving upon the left or wrong side of the road, contrary to an ordinance of the city of Omaha; (2) that defendant's servant failed to keep a proper lookout for approaching vehicles; and (3) that defendant's servant failed to display a light at the front of his wagon as required by an ordinance of the city of Omaha.

The accident occurred on December 25, 1925, at about 4 o'clock in the morning, the plaintiff driving south and colliding head-on with defendant's wagon coming north.

The instructions complained of are Nos. 6, 7, 8, and 16. Instruction No. 6 is in the following language:

"You are instructed that it is provided by an ordinance of the city of Omaha with respect to the travel and traffic upon its public highways, among other things, as follows: 'Vehicles in motion shall keep between the curb to the right and the center of the highway.'

"It is also provided by the laws of this state that no motor vehicle shall be operated within any city, at a rate of speed greater than is reasonable and proper, having regard of the traffic and use of the road, and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person.

"You are instructed that these are valid provisions of law, and that it was the duty of the plaintiff and of the driver of the defendant's wagon to obey the same at the time of the accident. The defendant is not liable in this action simply and solely because its team and wagon were on the left-hand side or the west side of the boulevard, as they proceeded north, if you find that they were on the left-hand or west side of the roadway. But if you find that at the time of the accident defendant's horses and milk wagon or either thereof were on the wrong side of the boulevard, i.e., between the curb on the left and the center of the road, and that such fact was the sole cause of the accident, and that plaintiff was not negligent upon his part, then it will be your duty to return a verdict in favor of the plaintiff, for the damages he has sustained. And, if you find that the defendant's wagon or horses were on the left-hand side of the road, i.e., between the left curb and the center, and that such fact was not the sole and exclusive cause of the accident, but did contribute to cause the accident, such fact would constitute negligence upon the part of the defendant, the degree of which and the effect of which will be for you to determine under the evidence and these instructions."

Instruction No. 7 told the jury that, if the defendant failed to comply substantially with the ordinance as to the display of a light, and that "its failure so to do was the sole and exclusive cause of the accident, and plaintiff was not negligent on his part, then the plaintiff is entitled to recover his damages sustained."

Instruction No. 8 told the jury that it was the duty of the driver of the milk wagon to use ordinary and reasonable care in keeping a proper lookout for approaching vehicles, "and if he failed so to do, and the accident was occasioned solely and exclusively because of any such failure on his part, and the plaintiff was not negligent in any respect, then the defendant would be liable for any damages sustained by the plaintiff." It further told the jury that it was the duty of the driver to use ordinary care in guiding his horses and keep them to the right of the center of the highway, and "if he failed in this respect, and such failure in any way contributed to occasion the accident, such failure would be negligence on the part of the defendant, the extent and degree and effect of which will be for you to determine under instructions hereinafter given you."

The question for determination is whether these instructions violate the well-established rule in this jurisdiction that, except in cases where a statute imposes upon the defendant a mandatory duty to do some act for the protection or safety of individuals or property, the question whether or not the violation of an ordinance or statute amounted to actionable negligence is one for the jury, under proper instructions of the court, and does not ordinarily amount to negligence per se, or as a matter of law. The rule was clearly announced, after elaborate consideration of the cases, in Stevens v. Luther, 105 Neb. 184 180 N.W. 87, where the case of Walker v. Klopp, 99 Neb. 794, 157 N.W. 962, announcing the opposite rule was disapproved, and the proper rule stated to be that, subject to the exceptions noted, the violation of a statute or ordinance is evidence of negligence, which the jury is entitled to consider in connection with all other evidence in the case. It is true that in the Luther case the court instructed the jury that a person violating the statute fixing the rate of speed for automobiles is guilty of negligence as a matter of law, but the objection to the instruction was not upon the grounds now under consideration. The contention of counsel there was: "If the court imparts to the jury the statute regulating the speed of automobiles, it should then say to the jury: 'It is for you to determine whether or not the excess rate of speed, if you find it was in excess...