Davis v. Dennert

• Citation: 75 N.W.2d 112,162 Neb. 65
• Decision Date: 24 February 1956
• Docket Number: No. 33855,33855
• Parties: Lorine DAVIS, Appellant, v. Lloyd DENNERT and Edwin Heidzig, Appellees.
• Court: Nebraska Supreme Court

Page 112

75 N.W.2d 112

162 Neb. 65

Lorine DAVIS, Appellant, v. Lloyd DENNERT and Edwin Heidzig, Appellees.

No. 33855.

Supreme Court of Nebraska.

Feb. 24, 1956.

Syllabus by the Court.

1. In every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

2. In order that assignments of error as to the admission or rejection of evidence may be considered, the holdings of this court require that appropriate reference be made to the specific evidence against which objection is urged.

3. As a general rule a party calling a witness vouches for his credibility and is ordinarily bound by any evidence he gives which is not contradicted or shown to be unreliable. In other words, a party who offers the evidence of a witness cannot subsequently object that it should not have been received or that it is insufficient to sustain a judgment based thereon. But a party calling a witness is not necessarily bound by his testimony. This is true where the testimony is contradicted, either expressly or by inference, by evidence that would justify the trier of facts in arriving at a different conclusion.

4. Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of.

5. A witness may describe the marks that he observed near the place of an accident. The inference to be drawn from the testimony regarding such tire marks or scratches is solely the province of the jury.

6. 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.

7. The violation of an ordinance or statute requiring automobiles and other vehicles to drive to the right of the center of the highway does not constitute negligence per se, or as a matter of law; but whether or not such violation constituted negligence is a question for the jury under proper instructions.

8. Where one is confronted suddenly with an emergency and is required to act quickly, he is not necessarily negligent if he pursues a course which mature reflection or deliberate judgment might prove to be wrong.

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.

Wells, Martin, Lane, Baird & Pedersen, Omaha, Lorna L. Williams, Des Moines, Iowa, for appellant.

Gross, Welch, Vinardi & Kauffman, Omaha, for appellees.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

WENKE, Justice.

Lorine Davis brought this action in the district court for Douglas County against Lloyd Dennert and Edwin Heidzig. The purpose of the action is to recover damages plaintiff alleged she suffered as a result of an automobile accident in which she was injured and her car damaged. Plaintiff bases her right to recover on the ground that defendant Heidzig negligently operated a car owned by defendant Dennert, which negligence she alleged caused the accident. Dennert filed an answer raising the issue of contributory negligence. He also filed a counterclaim whereby he sought to recover damages for personal injuries and damages to his car arising out of the same accident. Heidzig joined in the answer but filed a separate counterclaim seeking to recover damages for personal injuries he suffered in the same accident. Trial was had. At the conclusion of plaintiff's evidence, and after she had rested, defendants moved for a directed verdict. This motion the trial court sustained. The trial court thereupon dismissed plaintiff's cause of action and also the counterclaims of each of the defendants, the latter without prejudice. On November 3, 1952, plaintiff filed a motion for new trial which the trial court did not overrule until April 27, 1955. This appeal was perfected from that ruling.

The appeal primarily involves two questions. They are: First, did the appellant make a prima facie case? Second, if so, does the evidence she adduced show she was guilty of contributory negligence, as a matter of law, sufficient to defeat her right to recover?

The following principles are applicable in determining these questions:

'The rule is that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.' Farr Co. v. Union Pac. R. Co., 10 Cir., 106 F.2d 437, 439. See, also, Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N.W. 551; Guerin v. Forburger, 161 Neb. 824, 74 N.W.2d 870.

'For the purpose of decision on a motion for 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 it is directed, and such 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.' Gable v. Pathfinder Irr. Dist., 159 Neb. 778, 68 N.W.2d 500, 501. See, also, Behrens v. Gottula, 160 Neb. 103, 69 N.W.2d 384; Fick v. Herman, 159 Neb. 758, 68 N.W.2d 622.

"In reviewing the action of a trial court in directing a verdict, this court will regard as conclusively established every fact favorable to the unsuccessful party which the evidence proves or tends to establish.' Preston v. Stover, 70 Neb. 632, 97 N.W. 812; Kepler v. Chicago, St. P., M. & O. R. Co., 111 Neb. 273, 196 N.W. 161. * * * 'Where, from the testimony before the jury, different minds might draw different conclusions, it is error to direct a verdict.' Suiter v. Park Nat. Bank, 35 Neb. 372, 53 N.W. 205; Schwerin v. Andersen, 107 Neb. 138, 185 N.W. 321.' Bainter v. Appel, 124 Neb. 40, 245 N.W. 16, 17.

'In an action where there is any evidence which will support a finding for a party having the burden of proof, that trial court cannot disregard it and direct a verdict against him.' Parsons v. Cooperman, 161 Neb. 292, 73 N.W.2d 235, 236.

'Where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence, as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.' Pierson v. Jensen, 150 Neb. 86, 33 N.W.2d 462, 463.

Dodge Street Highway is a paved four-lane highway running some 16 miles west from Omaha. There it ends in a Y, the north two lanes of the highway curving to the north and the south two lanes thereof curving to the south. Both curved roads then join a paved road running north and south between Waterloo, Nebraska, and Center Street. The accident here involved happened at about the southwest corner of this Y. It occurred approximately where the south curve of the Y, which is a sweeping curve some 3,000 feet in length, joins the north and south highway, which is a paved road 20 feet wide. It happened about 11:30 p. m. on Monday, July 3, 1950. The highway is level where it occurred and the view for drivers coming from any direction is substantially unobstructed. The night was clear and the pavement dry.

The cars involved were a 1939 Chevrolet sedan owned by appellant and, at the time, being driven by her, and a 1950 Ford coach owned by appellee Dennert and, with his consent, being driven by appellee Heidzig. Appellant, with her family, was traveling from Des Moines, Iowa, their home, to David City, Nebraska, to visit appellant's sister and her husband. Appellant, who was familiar with the road, had been driving for about 8 miles immediately preceding the accident. With her in the car at the time were her husband, Lester, who was in the front seat, and her two children, Madelon 16 and Jerry 11, who were in the back seat. Appellees were coming from Denver, Colorado, to Omaha, and had last stopped in Wahoo, Nebraska. With them in the car were Wilber Bohling, Paul Buntrock, and Doris Ails, the latter having joined them at Seward where she was attending school.

The impact was between the left front of the Chevrolet and the front of the Ford. After the accident both cars were on the north-south road facing west and about 4 feet apart. The front of the Chevrolet was off the paved surface on the shoulder while the Ford was entirely on the paved surface, the rear being across the center line. Both cars were badly damaged and the passengers therein injured in various degrees.

The foregoing is only a general summary of when, where, and how the accident happened. We shall discuss the evidence more in detail as we deal with the questions raised.

There are several other questions raised besides the two principal issues. We shall discuss and dispose of them first because a determination thereof is, to a certain extent, determinative of the principal issues.

Appellant, in her brief, says: 'There were a number of erroneous rulings on evidence. We assume that this Court in determining whether it was proper for the trial court to direct a verdict will only consider such evidence as was properly admitted and will also consider evidence which was wrongfully excluded if proper tender of proof made. Hence, we will...