Coyle v. Stopak

• Decision Date: 13 December 1957
• Docket Number: No. 34254,34254
• Citation: 165 Neb. 594,86 N.W.2d 758
• Parties: Margaret COYLE, Appellant, v. John STOPAK, Appellee.
• Court: Nebraska Supreme Court

Page 758

86 N.W.2d 758

165 Neb. 594

Margaret COYLE, Appellant, v. John STOPAK, Appellee.

No. 34254.

Supreme Court of Nebraska.

Dec. 13, 1957.

Syllabus by the Court.

1. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleadings and evidence, and a failure to do so is prejudicial.

2. The lawfulness of the speed of a motor vehicle within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

3. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.

4. Although the evidence may be entirely circumstantial as to the rate of speed at which a motor vehicle was operated, it may be sufficient to support a reasonable conclusion reached by the jury on the issue of negligence. Circumstances connected with an accident may be sufficient to overcome direct evidence as to the the speed of a motor vehicle.

5. A motor vehicle traveling on a highway at a reasonable and lawful rate of speed is not required to slow down or stop upon the appearance of a motor vehicle about to enter the highway from a private road until it reasonably appears that its driver is not going to yield the right-of-way.

6. A user of the highways may assume, unless and until he has warning, notice, or knowledge to the contrary, that other users of the highways will use them in a lawful manner, and until he has such warning, notice or knowledge, he is entitled to govern his actions in accordance with such assumption.

7. An 'emergency' is a sudden or unexpected happening or occasion calling for immediate action.

8. In order to justify a resort to the defense of sudden emergency there must be an absence of opportunity for mature deliberation.

9. The emergency rule cannot be successfully invoked by either party in a negligence case unless there is competent evidence to support a conclusion that a sudden emergency actually existed, and then it cannot be successfully invoked by one who has brought that emergency upon himself by his own acts or who has not used due care to avoid it.

10. Proximate cause, as used in the law of negligence, is that cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred.

11. An efficient, intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury.

12. The causal connection is broken if between the defendant's negligent act and the plaintiff's injury there has intervened the negligence of a third person who had full control of the situation and whose negligence was such as the defendant was not bound to anticipate and could not be said to have contemplated, which later negligence resulted directly in the injury to the plaintiff.

13. A cause of an injury may be the proximate cause notwithstanding it acted through successive instruments or a series of events, if the instruments or events were combined in one continuous chain or train through which the force of the cause operated to produce the disaster.

14. An act done by another in normal response to fear or emotional disturbance to which the actor's negligent conduct is a substantial factor in subjecting the other is not a superseding cause of harm done by the other's act to himself of a third person.

15. The purpose of an instruction is to furnish guidance to the jury in its deliberations, and to aid it in arriving at a proper verdict; and, with this end in view it should state clearly and concisely the issues of fact and the principles of law which are necessary to enable it to accomplish the purpose desired.

16. Instructions to a jury must be considered together, so that they may be properly understood, and, if as a whole they fairly state the law applicable to the evidence when so construed, error cannot be predicated on the giving thereof.

17. Instructions must be considered and construed together, and if they are not sufficiently specific in some respects, it is the duty of counsel to offer requests for instructions that will supply the omission, and, unless this is done, the judgment will not ordinarily be reversed for such defects.

18. There is no impropriety in a trial court interrogating witnesses regarding a fact under investigation, when the tendency is only to develop the truth, and is calculated in nowise to influence the jury, save as the testimony will assist it to arrive at a correct conclusion on the questions of facts in issue.

19. However, this right should be very sparingly exercised and generally counsel for the parties should be relied on and allowed to manage and bring out their own case.

20. The judge presiding at a trial must conduct it in a fair and impartial manner. He should refrain from making any unnecessary comments or remarks during the course of a trial which are calculated to influence the minds of the jury. A remark or comment which is shown to be prejudicial to the rights of the party complaining, or which is such that it may be assumed prejudice will result therefrom, is fatal to the validity of the trial.

McCormack & McCormack, Wear, Boland & Mullin, A. Lee Bloomingdale, Omaha, for appellant.

Crawford, Garvey, Comstock & Nye, Gerald M. Vasak, Omaha, 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 Douglas County. It involves a tort action wherein Margaret Coyle seeks to recover from John Stopak damages resulting from personal injuries she suffered in a truck-car accident which she claims was caused by the negligent conduct of Stopak in driving his truck. A jury returned a verdict for defendant and judgment was entered thereon. Her motion for new trial having been overruled, plaintiff perfected this appeal.

The accident, in which appellant was injured, happened about 6 p. m. on Tuesday, September 27, 1955, on a U. S. Highway bearing numbers 6, 30A, and 275, which we will herein refer to as the Dodge Road or highway, at a point about 4 miles west of Boys Town, Nebraska. It had its inception when appellee's truck, a 1951 GMC straight truck with stock rack, bumped into the rear of a 5-passenger Mercury coupe owned by Charles E. Coyle. At the time of the accident appellant was riding in the car as as a guest of her husband.

The Coyles, Charles E. and appellant, are husband and wife. They are elderly people and were, at the time of the accident, respectively 77 and 78 years of age. They lived in a house which was one of the buildings on an 80-acre farm located north of Dodge Road, and adjacent thereto, at a point about 4 miles west of Boys Town. The buildings on this farm are located about 200 feet north of Dodge Road and a graveled lane leads from the house to the highway. As this lane leaves the gate, which is about 20 feet north of the surfaced portion of the highway, it fans out in both directions. The Coyles, Mr. Coyle driving, were leaving their home to go to dinner at the Ten Mile Inn, which is to the east on Dodge Road.

Dodge Road is a four-lane surfaced highway 44 feet wide with two lanes for travel in each direction, each of which is 11 feet wide. On the south side of this paved surface, in the area immediately across from the Coyle driveway, the shoulder is amply wide for vehicles to enter upon if it becomes necessary for them to do so. At the time of the accident the weather was bright and clear, visibility good, and the surface of the highway clean and dry.

As Mr. Coyle drove down the lane and reached the north edge of the pavement of Dodge Road he stopped his car, which was then facing in a southeasterly direction, and looked both east and west along the highway. At the point where the Coyle lane or driveway enters onto the highway, which runs east and west, the highway is level. However, it rises both to the east and west thereof, reaching a crest to the east at a point somewhere between 1/4 and 1/2 mile therefrom and to the west somewhere between 1/2 and 3/4 mile therefrom. When Mr. Coyle looked to the east he saw a vehicle approaching from that direction but at a distance which he considered sufficient to permit him to cross the highway ahead of it in order to drive towards the east. Mr. Coyle then looked to the west. He admitted he could see to where the highway crested. He testified he saw no vehicles coming from that direction, so started to drive his car onto the paving, proceeding in a southeasterly direction at from 10 to 15 miles an hour as he did so.

Appellee, who was 58 years of age at the time of trial, is a farmer, feeder, and commercial trucker. He lives about 5 miles southeast of Fullerton, Nebraska. On the day of the accident he was hauling a load of cattle to the South Omaha market for Mike Uzendoski, a feeder living near Fullerton.

Appellee was driving his truck east on Dodge Road in the south lane for eastbound traffic. He testified he saw the Coyle car entering onto the surfaced portion of the highway when his truck was some 50 to 60 feet west of the center of the Coyle lane, if extended across the highway; that the car proceeded onto the surfaced portion of the highway and traveled in a southeasterly direction at from 15 to 20 miles per hour; that as it continued to travel in a southeasterly direction the car entered the south lane for eastbound traffic; and that as it did so the left front of his truck came in contact with and bumped the right...