Combs v. Owens Motor Company
| Decision Date | 26 March 1931 |
| Docket Number | 27656 |
| Citation | 235 N.W. 682,121 Neb. 5 |
| Parties | CATHERINE HELEN COMBS, ADMINISTRATRIX, APPELLEE, v. OWENS MOTOR COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Negligence of driver of defendant's automobile which collided with truck driven by plaintiff's intestate at highway intersection held for jury under evidence.
Evidence in the record examined, and held to support the verdict, and to sustain the denial by the trial court of defendant Owens Motor Company's motion for an instructed verdict in its behalf.
Errors if any, in receiving incompetent evidence are presumed to have been waived, unless objected to when the evidence is offered.
Where a question is asked of a witness, and his answer, which is responsive to the question, is received without objection, and motion is then made by counsel to strike out such evidence on the ground of its incompetency, it is discretionary with the court whether it will sustain the motion or not.
Hearsay evidence tending to prove a material fact, if admitted without objections, may sustain a finding of the existence of that fact. The probative force of such evidence is for the jury and not for the court to determine.
To warrant the reversal of a judgment, it must affirmatively appear from the record that the ruling with respect to which error is alleged was prejudicial to the rights of the party complaining.
Additional Syllabus by Editorial Staff.
On defendants' appeal in action for death arising out of automobile collision, error in admitting testimony showing defendant was protected by liability insurance held not prejudicial.
In action for death arising out of automobile collision, plaintiff's testimony admitted over objection, showing defendant was protected by liability insurance, was admitted for sole purpose of showing real parties in interest, and for no other purpose. Fact that defendant carried such insurance was not challenged. Amount of verdict returned, and nature and extent of damages suffered as established by proof did not disclose prejudice.
Appeal from District Court, Scotts Bluff County; Carter, Judge.
Action by Catherine Helen Combs, administratrix of the estate of Sylvester Maurice Combs, deceased, against the Owens Motor Company, a corporation, and another. Judgment for the plaintiff, and the defendants appeal.
Affirmed.
Morrow & Morrow, for appellants.
Raymond & Fitzgerald, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ.
Action by administratrix to recover damages occasioned by injuries inflicted upon and causing death of her intestate and husband. Trial to jury. Verdict for plaintiff. From judgment thereon defendants appeal.
The accident occasioning the death of Combs occurred in the intersection of two rural highways. Just prior to the collision which caused his death he was driving a Graham-Dodge truck eastward along the south side of an east and west country road. At that time an Oldsmobile automobile, the property of the defendant Owens Motor Company and in charge of John Darrah, an employee of the motor company and then engaged in its business, coming from the north on a similar intersecting north and south highway, traveling approximately in the center thereof, collided with the truck, and as a result thereof the truck was upset and its driver killed. The point of impact was in the south half of the intersection. As to whether the driver of the Oldsmobile was then carrying out a purpose of continuing southward along the north and south highway, or was attempting to turn to the east and continue his journey on the road the truck was then traveling, the evidence of defendants' witnesses is conflicting. It may be said that it clearly appears from the evidence that in broad daylight, on a clear day, on a smooth, dry, graded highway, due to and because of the speed at which the Oldsmobile was being operated, the failure of the driver thereof to keep a proper lookout, his failure to have his vehicle under proper control, or his failure to keep it in its proper course, in view of the circumstances then existing, the collision occurred and thereby the death of the deceased was caused. At the point of impact the truck was on its proper side of the road, and at a place where approaching an intersection in a highway, "from the right," it was entitled to the right of way over the Oldsmobile then approaching the same point on an intersecting road on its left. Evidence in the record also sustains the inference that the truck entered the intersection first, and there is no evidence which establishes any negligence as chargeable to the truck driver. The court did not therefore err in overruling the defendants' motion for an instructed verdict at the close of plaintiff's case in chief.
The defendant Owens Motor Company insists, however, that evidence as to certain admissions made by John Darrah, the driver of the Oldsmobile, a codefendant and its employee, in a conversation with certain witnesses testifying thereto, which took place at the scene of the accident, a few moments after its occurrence, is not competent against it nor proper for the consideration of the jury in determining the issues formed by its pleadings.
The statements to which this objection refers were made by the witness, John Darrah, and related to the manner in which the accident occurred, and support, if true and competent, the inference of negligence on the part of the driver of the Oldsmobile. The motor company insists that admissions or declarations of an agent or employee made after the accident or transactions, which are no part of the res gestae, are not admissible to bind the principal.
Conceding, for the purpose of this opinion, the correctness of the principle upon which the motor company relies, as an abstract proposition, the question sought to be raised is not presented by the record presented for review. It appears that at the trial both defendants were represented by the same attorneys. The evidence now objected to was elicited without any objection on the part of any of the defendants. The interrogatories propounded in reference to this subject fairly disclosed its nature and the purport of the evidence sought to be introduced. The counsel for defendant motor company not only failed to object, but cross-examined at length upon the conversation now challenged. No motion was tendered to strike out this evidence until the close of the plaintiff's case. Under such a state of facts, the general rule appears to be: 2 Hyatt, Trials, 1278. This court is committed to this doctrine. Wood v. City of Omaha, 87 Neb. 213, 127 N.W. 174; Ryne v. Liebers Farm Equipment Co., 107 Neb. 454, 186 N.W. 358; Western Home Ins. Co. v. Richardson, 40 Neb. 1, 58 N.W. 597; Dunn v. State, 58 Neb. 807, 79 N.W. 719; Fulton v. Ryan, 60 Neb. 9, 82 N.W. 105; Palmer v. Witcherly, 15 Neb. 98, 17 N.W. 364; Brown v. Cleveland, 44 Neb. 239, 62 N.W. 463.
Nor did the trial court err in overruling the defendant motor company's motion to strike the evidence of this conversation from the record made at the close of the plaintiff's case. "Where a question is asked of a witness, and his answer, which is responsive to the question, is received without objection and motion is then made by counsel to strike out the...
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