Carter v. Parsons

• Decision Date: 27 June 1939
• Docket Number: 30551.
• Citation: 286 N.W. 696,136 Neb. 515
• Parties: CARTER v. PARSONS ET AL.
• Court: Nebraska Supreme Court

286 N.W. 696

136 Neb. 515

CARTER v. PARSONS ET AL.

No. 30551.

Supreme Court of Nebraska.

June 27, 1939

Syllabus by the Court.

1. A trial judge has the same power to view the premises, on a trial without a jury, as exists in him to permit inspection on a jury trial, and such view or inspection is entitled to the same effect in both cases.

2. On a trial without a jury, the judge, in the exercise of his discretion, may view the premises without the consent of the parties.

3. Such action, like all judicial discretion, may be reviewed on appeal for prejudicial abuse.

4. As a matter of judicial propriety, a trial judge should ordinarily and so far as practical, make his inspection in the presence of the parties or with an opportunity to them to be present, but his failure to do so does not necessarily constitute an abuse of discretion.

5. A view of the premises by a judge, on a trial without a jury is evidence and may be made a factor in his determination of the case.

6. Such fact is entitled to consideration and weight on an appeal, although the record itself must contain competent evidence to support the trial court's findings.

7. In a law action tried to the court, its findings of fact have the same effect as the findings of a jury and cannot be set aside unless clearly wrong.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action by George L. Carter against Loyal Parsons and Elmer Higgins for injuries sustained in an automobile collision. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

Frank A. Peterson, of Lincoln, for appellant.

Chambers, Holland & Locke, of Lincoln, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

Plaintiff has appealed from a judgment for defendants, in an action for damages arising out of an automobile collision. At the close of the evidence both parties moved for a directed verdict, and the court thereupon discharged the jury, made a personal inspection of the scene of the accident, and dismissed plaintiff's petition.

It is contended (1) that the trial court erred in viewing the premises without the consent of the parties, and (2) that the evidence does not sustain the judgment.

The first contention is predicated on the following journal entry: " On June 9, 1938, after submission of this case, the court inspected the place of the accident taking Exhibit Number 3 with him, and this case now coming on for final decision, the court finds generally against the plaintiff on his cause of action." The exhibit referred to was a photograph of the intersection involved, which purported to show the skid marks of plaintiff's car.

Whether the court, on a trial without a jury, may view the premises without the consent of the parties is a question on which the authorities are divided. In 26 R.C.L. 1085, sec. 90, it is declared that the weight of authority is to the effect that it is error to do so. An examination of the decisions generally, however, does not sustain this statement. The doubt contained in the cases is not so much of the right to view, as of the use which the trial judge is permitted to make of the information thus acquired.

The extent of a trial court's right to view the premises, on a trial without a jury, has never been clearly defined in this state. There are a number of equity cases in which such a view has been made, but where the right of the court to do so does not appear to have been directly challenged . Shavlik v. Walla, 86 Neb. 768, 126 N.W. 376; Chapin v. Village of College View, 88 Neb. 229, 129 N.W. 297; Keim v. Village of Bloomington, 119 Neb. 474, 229 N.W. 769; Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647; Higgins v. Adelson, 131 Neb. 820, 270 N.W. 502.

Logically, however, a trial judge must be held to have the same power to view the premises, on a trial without a jury, as exists in him to permit inspection on a jury trial, and such view or inspection necessarily is entitled to the same effect in both instances. Any other position would stamp a trial judge as meriting less confidence than, and as lacking the wisdom and restraint of, an ordinary jury. It would also create an absurd procedural distinction between court and jury trials.

The right of the trial court to permit inspection in jury cases is expressly recognized in section 20-1108, Comp.St.1929, " whenever, in the opinion of the court, it is proper for the jury to have a view of property which is the subject of litigation, or of the place in which any material fact occurred." This section is merely confirmatory of the power generally recognized as existing in a trial court even apart from any statute. 26 R.C.L. 1016, sec. 13; 64 C.J. 1200. Whether a view shall be permitted does not depend upon the consent of the parties, but is a matter solely for the discretion of the trial court. Alberts v. Husenetter, 77 Neb. 699, 110 N.W. 657.

A view of the premises is held in this state to be evidence and not merely a means of enabling the jury better to construe and apply the evidence adduced in court. Chicago, R.I. & P. R. Co. v. Farwell, 59 Neb. 544, 81 N.W. 440.On rehearing, in 60 Neb. 322, 83 N.W. 71, an opinion was written by Judge Sullivan, where it was said: " We have again carefully examined the grounds of our decision, without being able to reach a conclusion different from the one already announced. Upon the question in controversy judicial opinion is divided, the greater number of adjudged cases supporting the theory that the impressions gathered by the jury in making an inspection are not evidence. This court is, we think, committed by Carroll v. State, 5 Neb. 31, and [Omaha & R. V.] Railroad Co. v. Walker, 17 Neb. 432, 23 N.W. 348, to the doctrine that the jury may take into account the result of their observations at the locus in quo and make it, in connection with the other evidence, the basis of their verdict. This is the rational rule; by its adoption a fact is recognized, and a fiction abolished. In whatever capacity men act, they will not reject the evidence of their own senses; and it is futile, and almost foolish, to direct them to do so."

The rule which was thus adopted has been reaffirmed in Drollinger v. Hastings & N.W. R. Co., 98 Neb. 520, 153 N.W. 619; Stull v. Department of Roads and Irrigation, 129 Neb. 822, 263 N.W. 148, and Rundall v. Grace, 132 Neb. 490, 272 N.W. 398.

In Stull v. Department of Roads and Irrigation, supra, it was said [129 Neb. 822, 263 N.W. 149]:" This court is committed to the rule that the viewing of the premises involved in litigation by the jury is evidence, and not merely a means of enabling the jury better to construe and apply the evidence adduced in court. * * * However, we take the view that such evidence by itself, and in the absence of other evidence tending to sustain the issue, is not sufficient to sustain a finding or an award of damages."

In the light of what has been previously said, it must be held, as a matter of consistency and logic, that, on a trial without a jury, the judge, in the exercise of his discretion, may view the premises without the consent of the parties. " But it is the wise policy of the...