Dryer v. Malm

• Decision Date: 06 July 1956
• Docket Number: No. 33974,33974
• Citation: 77 N.W.2d 804,163 Neb. 72
• Parties: Minnie E. DRYER, Appellant, v. Eugene H. MALM and Joe Vetchek, Appellees.
• Court: Nebraska Supreme Court

Page 804

77 N.W.2d 804

163 Neb. 72

Minnie E. DRYER, Appellant, v. Eugene H. MALM and Joe Vetchek, Appellees.

No. 33974.

Supreme Court of Nebraska.

July 6, 1956.

Syllabus by the Court.

1. A motion for a directed verdict or its equivalent 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 such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

2. In an action wherein there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.

3. In a case 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.

4. Proximate cause, as used in the law of negligence, is that cause which in a natural sequence, unbroken by any efficient intervening cause, produces the injury, and without which the accident could not have happened.

5. As a general rule it is negligence as a matter of law for a motorist to drive an automobile on a highway in such a manner that he cannot stop in time to avoid a collision with an object within the range of his vision.

6. Exceptions to the general rule are situations where on streets or highways the nature of the object or its condition or color in relation to the street or highway may be such as to affect immediate visibility.

7. Exceptions do not extend to that which is clearly seen or in the exercise of ordinary care would or should have been seen.

8. In a negligence case the sudden emergency rule cannot be invoked by a party unless there is competent evidence to support a conclusion that a sudden emergency actually existed, unless the party invoking it has not brought the emergency on by his own act, and unless he has used due care to avoid it.

J. L. Thorpe and G. T. Burr, Sidney, for appellant.

Martin, Davis & Mattoon, Sidney, for appellees.

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

YEAGER, Justice.

This is an action in two causes of action by Minnie E. Dryer, plaintiff and appellant, against Eugene H. Malm and Joe Vetchek, defendants and appellees. The first cause of action is for damages for personal injuries which the plaintiff claims were caused by the negligence of the defendants. The second cause of action is for hospital and miscellaneous expenses incurred by H. G. Dryer, the husband of plaintiff, in the care and treatment of plaintiff, which it is claimed were made necessary by the negligence of the defendants. The claim for these expenses was duly assigned to plaintiff.

The case came on for a trial to a jury. At the conclusion of plaintiff's evidence, the defendant Malm made a motion for dismissal of plaintiff's petition or in the alternative that a verdict be directed in favor of the defendant and against the plaintiff. The motion to dismiss was sustained and judgment was rendered accordingly. The plaintiff filed a motion for new trial which was overruled. From the judgment and the order overruling the motion for new trial the plaintiff has appealed.

The motion to dismiss was predicated upon the contention of the defendant Malm that the evidence failed to establish the causes of action in favor of the plaintiff. The plaintiff asserts as ground for reversal that the court erroneously so found. This contention requires an analysis of plaintiff's first cause of action and the evidence in support thereof. The second cause must stand or fall with the first.

By her petition the plaintiff alleged, to the extent necessary to state here, that on February 4, 1954, at about 9:15 a. m., she was driving a 1951 Oldsmobile sedan in a westerly direction in a careful manner about 11 miles north and east of Dalton, Nebraska, on a graveled county road in Cheyenne County, Nebraska; that she passed over a knoll and as she did so she saw that to the west the entire roadway and the borrow pits on both sides were completely blocked with sheep; that she applied the brakes of the automobile and swung it to the north edge of the road and, seeing that she could not drive safely through the flock of sheep, she pulled to the left or south edge of the road and into the ditch where the automobile turned over and she was thrown out and injured; and that the accident was the result of negligence of the defendant Eugene H. Malm, owner of the sheep, and the defendant Joe Vetchek, the agent and servant of Malm, who was tending the sheep, in allowing them to block the highway. The particular specifications of negligence are that the flock of sheep were allowed to block the highway in such manner as to endanger the life and limb of motorists lawfully on the highway; in failing to warn motorists lawfully on the highway of the blockade caused by the sheep; and in permitting the sheep to be on the highway when by the exercise of ordinary care they knew or should have known that injury and damage would be the natural and probable consequences of the sheep being at large on the highway.

The defendant Malm filed an answer to the petition. There was no answer by the other defendant and no information in the transcript to indicate that the other defendant was brought into the case by service of process, so for the further purposes of this opinion Malm will be treated as the only defendant.

By answer the defendant admitted that the plaintiff had an accident but denied that negligence on his part or on the part of Vetchek was the cause. He further alleged that the proximate cause was negligence of the plaintiff which was more than slight. The negligence with which the plaintiff was charged was that she was driving at a high, dangerous, and excessive rate of speed while approaching and passing a hill crest contrary to the laws of Nebraska; that she failed to decrease her speed or to stop when she saw or should have seen the sheep after passing over the crest of the hill; that she failed to have or maintain her vehicle under proper control; that she failed to keep a reasonable lookout ahead; and that she failed to operate her vehicle in such a manner and at such a speed as to be able to stop within the range of her vision.

By reply the plaintiff generally denied the charges of negligence made against her. With the pleadings in this state the case went to trial.

In a determination of whether or not a motion for directed verdict or dismissal should be sustained certain principles are of controlling importance.

One is: 'A motion for directed verdict or its equivalent * * * 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 such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can reasonably be deduced from the evidence.' Fick v. Herman, 159 Neb. 758, 68 N.W.2d 622, 623. See, also, Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569; Behrens v. Gottula, 160 Neb. 103, 69 N.W.2d 384; Cook Livestock Co., Inc., v. Reisig, 161 Neb. 640, 74 N.W.2d 370.

Another is: 'In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.' Stark v. Turner, supra [154 Neb. 268, 47 N.W.2d 570]. See, also, Haight v. Nelson, 157 Neb. 341, 59 N.W.2d 576, 42 A.L.R.2d 1; Parsons...