Crecelius v. Gamble-Skogmo, Inc.
| Decision Date | 10 March 1944 |
| Docket Number | 31662. |
| Citation | 13 N.W.2d 627,144 Neb. 394 |
| Parties | CRECELIUS v. GAMBLE-SKOGMO, Inc., et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. For the purpose of decision upon a motion for a directed verdict the motion must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can be deduced from the facts in evidence.
2. Where different minds may reasonably draw different conclusions from the evidence in a law action the question to be decided is for the jury.
3. Where it appears that a witness had a reasonable time, means distance and opportunity to formulate a basis for an opinion as to speed of a car, such witness may express his opinion as to speed. The credibility and weight to be given such testimony is for determination by the jury.
4. As a foundation for the admissibility of experiments to illustrate a given subject it must be shown that the person who makes the experiment is competent to do so, that the apparatus used was of a kind and in the condition suitable for the experiment and that the experiment was honestly and fairly made.
5. A discretion is conferred upon the trial court in the reception of evidence of experiments and in order to authorize the reversal of a judgment on account of the admission or rejection of such evidence there must have been a clear abuse of discretion.
6. In an action for damages for personal injuries which are permanent and have impaired the earning capacity, damages for pecuniary loss by reason of decreased earning power are to be based on life expectancy immediately before the injury and for future mental and physical suffering on probable expectancy of life in plaintiff's injured condition.
7. Communications between the trial judge and jury after retirement of the jury should be controlled by a high degree of circumspection.
8. The only future pain and suffering which a jury is entitled to consider in the assessment of damages is such as the evidence shows with reasonable certainty will be experienced.
Morrow & Miller and Floyd E. Wright, all of Scottsbluff, and Cline, Williams & Wright, of Lincoln, for appellants.
Bertrand V. Tibbels, of Scottsbluff, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action by Richard Crecelius, a minor, by R. Allen Crecelius, his father and next friend, plaintiff and appellee, against Gamble-Skogmo, Incorporated, a corporation and Robert R. Robertson, defendants and appellants. The action is for damages for personal injuries claimed to have been sustained by plaintiff on the 24th day of July, 1940, in the city of Scottsbluff, Scotts Bluff county, Nebraska, on account of alleged negligence of the defendant, Robertson, who was at the time employed by, and engaged in the operation of a truck owned by, the defendant Gamble-Skogmo, Incorporated.
The case was tried to a jury and on February 22, 1943, a verdict was returned in favor of plaintiff and against the defendants for $20,000. Judgment was rendered on the verdict. From this judgment the defendants have appealed to this court.
Many of the pertinent facts in the case are not disputed. Among them are these: West Twentieth street is a street extending east and west in the city of Scottsbluff, Nebraska, and in the vicinity involved here it has a width of approximately 42 feet. Intersecting Twentieth street are avenues "C" and "D". Avenue "D" is one block west of avenue "C". On July 24, 1940, the defendant, Robertson, in due course of his employment, was operating a Chevrolet pick-up truck in the business of the defendant, Gamble-Skogmo, Incorporated. Shortly after 5 p.m. while Robertson was operating the truck in an easterly direction on Twentieth street between avenues "C" and "D" he ran into the plaintiff, a minor of the age of four years. The plaintiff, at the time, was crossing Twentieth street. From the south side he was running across the street in a northeasterly direction. The right front fender struck plaintiff and as a result he came to rest some distance eastward from the point of collision and near the center of Twentieth street. That he was injured is not questioned. The character and extent of his injuries are in dispute.
Plaintiff by his petition contends that the collision came about because of negligence in substantially the following particulars: The truck was equipped and operated with deficient, faulty and improper brakes; the truck was operated at an excessive rate of speed in violation of the ordinances of the city of Scottsbluff; the truck was operated without proper control; Robertson failed to steer the truck to right or left so as to avoid striking plaintiff although he had sufficient opportunity so to do.
In the answer the allegations of negligence are generally denied and the defendants further allege substantially that Robertson was confronted with an emergency for which he was in nowise responsible, whereby he was unable, in the exercise of ordinary care under the circumstances, to avoid striking the plaintiff.
The first question raised by the appeal is the sufficiency of the evidence to justify the submission of negligence of the defendants to a jury. The determination of this question must be agreeable to two rules.
The first is that in considering a motion for a directed verdict this court must, for the purpose of a decision thereon, treat it as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the facts in evidence. Fairman v. Cook, 142 Neb. 893, 8 N.W.2d 315.
The second is that where different minds may reasonably draw different conclusions from the evidence in a law action the question to be decided is for the jury. Craig v. Chicago, St. P., M. & O. R. Co., 97 Neb. 426, 150 N.W. 374; Hickey v. Omaha & C. B. Street R. Co., 140 Neb. 665, 1 N.W.2d 304; Fulcher v. Ike, 142 Neb. 418, 6 N.W.2d 610.
In the light of these rules it becomes necessary to examine the evidence. The helpful evidence in this connection is found for the most part, if not entirely, in the testimony of plaintiff's witness, Dan Goodro, as aided by distances shown by the plat of the area of Twentieth street between avenues "C" and "D". Goodro and the defendant, Robertson, were the only eyewitnesses to the accident.
The pertinent part of Goodro's testimony is the following: On the matter of speed of the truck this witness testified that it was traveling at a rate of about 45 miles per hour.
If this testimony is true then by reference to the plat which is in evidence plaintiff started across the street from a point about 35 feet west of the alley which alley is 140 feet east of avenue "D." At the time plaintiff started across Robertson was at least 105 feet to the west. The witness also testified that there was no traffic and no parked automobiles to obstruct Robertson's full view of the street.
At the time of the accident the brakes on the truck were greatly out of adjustment. The left front had no braking pressure, the right front had 75 pounds, the right rear 300 pounds and the left rear 600 pounds.
On these facts there was clearly a question of negligence to be submitted to the jury. The jury had a right toconsider whether or not Robertson was negligent in not, under the circumstances, having the truck under such control as to be able to avoid striking the plaintiff by stopping, turning to the left or to the right, or in not seeing plaintiff in time to avoid striking him. It is true that Robertson's version of the incidents varies greatly from that of Goodro. He says that plaintiff ran out from behind an automobile which was parked on the south side of the street so closely in front of him that he did not even have time to apply his brakes...
To continue reading
Request your trial