Chicago Lumber Co. of Kearney v. Gibson

• Decision Date: 17 December 1965
• Docket Number: No. 35974,35974
• Citation: 179 Neb. 461,138 N.W.2d 832
• Parties: CHICAGO LUMBER COMPANY OF KEARNEY, Nebraska, a Corporation, Appellant, v. Ray G. GIBSON, d/b/a Kearney Sheet Metal and Roofing Company, Appellee.
• Court: Nebraska Supreme Court

Page 832

138 N.W.2d 832

179 Neb. 461

CHICAGO LUMBER COMPANY OF KEARNEY, Nebraska, a Corporation, Appellant, v. Ray G. GIBSON, d/b/a Kearney Sheet Metal and Roofing Company, Appellee.

No. 35974.

Supreme Court of Nebraska.

Dec. 17, 1965.

Syllabus by the Court

1. Courts will not as a rule take notice of municipal ordinances unless required to do so by special charter or general law.

2. A party to have the benefit of a municipal ordinance must generally plead and prove the existence of the ordinance.

3. The trial court has a certain discertion in determining the limits of cross-examination and the extent to which repetition should be permitted must necessarily be within the discretion of the trial court.

4. A prerequisite to review on appeal of alleged improper conduct of and statements by a trial judge, on the trial in the presence of the jury, is an objection thereto.

5. A party is not permitted to proceed with the trial without objection and speculate on the outcome of the jury's verdict, and, if unfavorable, contend that a mistrial should have been declared, when he did not ask for the same at the time.

6. An error to be sufficient to require the granting to a new trial must be an error prejudicial to the rights of the unsuccessful party.

7. District judges have the power to promulgate reasonable rules for pre-trial procedure.

Haney, Walsh & Wall, Omaha, Munro, Parker & Munro, Kearney, for appellant.

Tye, Worlock, Knapp & Tye, Jeffrey H. Jacobsen, Kearney, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

SPENCER, Justice.

This is an action for damages in consequence of a fire which occurred January 17, 1963, on certain premises owned by Chicago Lumber Company of Kearney, Nebraska, a corporation, hereinafter referred to as plaintiff. Plaintiff alleged the fire was proximately caused by the negligence of Ray G. Gibson, doing business as Kearney Sheet Metal and Roofing Company, hereinafter referred to as defendant, in the renovation of a flue on a heating stove located on the premises. The jury returned a verdict for the defendant, and the plaintiff has perfected an appeal to this court.

The fire occurred in an old uninsulated building used for storage and as a set-up shop to assemble and repair farm machinery. A wood and coal-burning heating stove was used to heat the set-up shop. The roof stack on the roof of the building broke off or was rusted through and the defendant was called to make repairs thereto. Plaintiff's general manager testified that he told defendant's employee: "Whatever it takes, go ahead and do it, as long as it's safe." One of defendant's employees who inspected the stove before the repair testified he recommended to plaintiff's general manager 'that the stovepipe be removed, changed, and another system put up; that it wasn't good enough for the amount of fire that they had in there; * * *.' The employee further testified plaintiff's general manager said: "That's the way it was been. Put it back like it was."

The testimony is extensive and it will serve no useful purpose to detail it herein further than necessary to understand the assignments of error alleged. Plaintiff's testimony in substance is to the effect that the fire was caused by the improper installation of the flue; that it was installed without proper insulation; and that it was installed in such a manner as not to allow sufficient spacing between it and the combustible material of which the roof of the building was constructed. Defendant's testimony is to the effect that a new stovepipe was put in exactly like the pipe it replaced. It was installed through a sleeve which was not removed or changed in any way. Defendant also adduced testimony it was not possible to determine the cause of the fire. The fire started soon after the heating stove was put to use after the repairman left. It is evident from its verdict that the jury accepted the defendant's theory of the case.

Plaintiff sets out 22 assignments of error which will be grouped for purposes of discussion herein. Plaintiff's principal assignment relates to the refusal of the trial court to take judicial notice of building code ordinance No. 1104 of the city of Kearney, and certain sections of the national building code. Plaintiff's assignments of error Nos. I, II, III, V, and VII relate directly to this assignment.

At the start of the trial and before the introduction of any evidence, the plaintiff asked the court to take judicial notice of building code ordinance No. 1104 of he city of Kearney, and of Article 5, section 546, of said ordinance, as well as of sections 1002.1 and 1008.4 of the national building code, 1955 edition, which is referred to in the building code of the city of Kearney. The defendant objected 'for the reason that none of the same has any application to any of the issues in this matter,' which motion the court said it was sustaining at that stage.

At the close of its case-in-chief, plaintiff again requested the court to take judicial notice of sections 1002.1 and 1008.4 of the national building code, and in support thereof had identified and offered in evidence photostatic copies of said sections. The objection previously made was renewed and a further objection was made as to foundation. No ruling appears in the record, but it is evident that the photostatic copies were not received in evidence.

Plaintiff then offered chapter 8 of the city code of Kearney for 1959, as revised through 1963. This is the building code of the city. Defendant objected for the reason that it was incompetent, irrelevant, immaterial, and not within the issues of this lawsuit, which objection was sustained.

We do not understand the basis for plaintiff's insistence that the district court take judicial notice of the city ordinance involved or of the national building code. As we said in Dell v. City of Lincoln, 168 Neb. 174, 95 N.W.2d 336: "The general rule is that ordinances * * * are not judicially known to courts having no special function to enforce them, although the power of municipalities to pass ordinances * * * is judicially noticed by the courts within the state." This has long been the rule in this jurisdiction. We said in 1894 in Foley v. State, 42 Neb. 233, 60 N.W. 574: 'Courts will not, as a rule, take notice of municipal ordinances, unless required to do so by special charter or general law.'

A party, to have the benefit of a municipal ordinance, must generally plead and prove the existence of the ordinance. See Perrine v. Hokser, 158 Neb. 190, 62 N.W.2d 677.

Plaintiff in its petition pleaded provisions of ordinance No. 1104 of the city of Kearney, but did not offer said ordinance except as it may have been integrated into chapter 8 of the Kearney city code. From plaintiff's petition, we determine that the portions embraced in plaintiff's pleadings are found in sections 8.114, 8.115, and 8.80 of chapter 8. The first two are embraced in article VI of chapter 8, which applies to an R3 residence district. Section 8.80 is found in article IV, RI residence district. Article IX covers the industrial district, and the sections pleaded by plaintiff have no application to it. The record does not disclose the location within the city of Kearney of plaintiff's premises, but from the evidence it would appear to be located in the industrial and not a residential district. It would appear that plaintiff has excerpted completely out of context portions of the Kearney building code pertaining to residential districts, which it sought to have applied to what appears to be an industrial or commercial building in the industrial area. One of the plaintiff's witnesses located the building as directly behind plaintiff's main building, which is located on Central Street. This is as close as the record gets to locating it within the city of Kearney. The evidence is conclusive that the building was used exclusively for a set-up shop and for storage. The plaintiff has not called our attention to any provisions of the city code which might have application to industrial or commercial buildings. There is no merit to any of the above assignmens of error on the record presented to this court.

Assignments of error Nos. IV and VI are directed to plaintiff's contention that it was unduly limited in its cross-examination of Carrol Sheldon, and to the court's comments thereon. There is no merit to plaintiff's assignments. Plaintiff's counsel was either confused or misunderstood the testimony of the witness. Plaintiff's counsel was unduly repetitious and the trial court was strictly within proper bounds in restricting further repetition. The trial court has a certain discretion in determining the limits of cross-examination, and the extent to which repetition should be permitted must necessarily be within the discretion of the trial court. See Longman v. Pope, 111 Neb. 838, 197 N.W. 955.

The comments of the court which are assigned as prejudicial error are as follows: 'The Court: What is counsel trying to do, here. He is going over the same thing and he is trying to confuse the witness about things about which he has already testified. Are you trying to stall, counselor? Mr. Wall: No, I'm not. The Court: Well, then, lets move on. * * * Q No, Mr. Knapp and I were both talking about the top of the sleeve. Mr. Knapp: I object to that, Your Honor, as---- The Court: Sustained. I think counsel is the only one that has been talking about the top of the sleeve. The witness hasn't been. That's where we have been having the difficulty. Mr. Wall: I would like to have the court instruct the jury to disregard the last remark of the court. The Court: Yes, the jury will disregard the last remarks of the court.'

From the record, it is understandable why the court made the observation it did in the first instance. It was necessary for the court to step in if it was to maintain control of the trial. The court, however, should...