Duling v. Berryman, 39621

• Decision Date: 03 April 1975
• Docket Number: No. 39621,39621
• Citation: 227 N.W.2d 584,193 Neb. 409
• Parties: Caren DULING, Administratrix of the Estate of Dale N. Duling, Deceased, Appellant, v. Edwin F. BERRYMAN, Appellee.
• Court: Nebraska Supreme Court

Page 584

227 N.W.2d 584

193 Neb. 409

Caren DULING, Administratrix of the Estate of Dale N. Duling, Deceased, Appellant, v. Edwin F. BERRYMAN, Appellee.

No. 39621.

Supreme Court of Nebraska.

April 3, 1975.

Syllabus by the Court

1. Instructions to the jury must be considered as a whole, and when thus considered, if the law is correctly stated and the case fairly submitted, and the jury could not have been misled, a claim of prejudicial error in the instructions is not available.

2. Generally it is negligence for a motorist to drive an automobile on the highway in such a manner that he is unable to stop in time to avoid a collision with an object within his range of vision.

3. An expert witness testifying from observation or personal knowledge must ordinarily testify to the facts upon which his opinion is based.

4. Rulings on questions calling for expert testimony will not ordinarily be reversed on review unless plainly prejudicial to the rights of the complaining party.

Douglas McArthur, Lincoln, for appellant.

Baylor, Evnen, Baylor, Curtiss & Grimit, J. Arthur Curtiss, Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an appeal from a jury verdict and judgment for the defendant in a wrongful death action brought by the plaintiff as administratrix of the estate of the decedent, Dale N. Duling, arising from an automobile accident on Cornhusker Highway in Lincoln, Nebraska, in June 1970. The plaintiff contends that there was error in the admission of expert testimony, error in the submission of the issues and the instructions thereon as to negligence, and error in the submission of the sudden emergency doctrine. We affirm the judgment of the District Court.

The plaintiff contends that while the decedent's car was moving eastward at approximately 25 miles per hour in the outside lane of Cornhusker Highway the defendant's car passed on the inside lane, cut in front of the decedent's car, and stopped abruptly. The plaintiff's theory is that the actions of the defendant forced the decedent to swereve to avoid the defendant's car and, being unable to avoid collision, hit the left rear of the defendant's vehicle, ricocheted off the defendant's car, and proceeded across the median strip of the Cornhuske Highway where it was hit again by a third car which was traveling westbound on the highway.

The theories as to how the accident happened factually are directly conflicting. The defendant testified that he had been driving east on Cornhusker Highway at approximately 25 miles per hour and was in the inside lane of the highway. His testimony is that the traffic was light and that he Did not overtake any cars prior to the time of the accident. His testimony is that one of his tires was low and he decided to change it. He engaged his right turn signal, looked to the right and to the rear, and on seeing that the way was clear proceeded moving to the outside lane and began slowing down. As he started to slow down his vehicle was struck from the rear and knocked off the roadway by the vehicle of the plaintiff's decedent. The defendant's brother, a passenger, testified that prior to moving to the outside lane he personally looked out the passenger's side window and found no headlights or any vehicle in the outside lane. It was raining heavily on the night of the accident and evidence was introduced that the blood alcohol level of the decedent was .15 after the accident.

The plaintiff complains that the court erred in submitting the issue of negligence on the part of the plaintiff's decedent in driving an automobile on the highway in such a manner that he is unable to stop in time to avoid a collision with an object within his range of vision. As we have recited, the defendant's theory of the case and his testimony supports the proposition that he was driving properly in the outside lane of Cornhusker Highway and was slowing down at the time of the collision and that the plaintiff's decedent, coming directly from the rear, drove into the defendant's vehicle. Generally it is negligence as a matter of law for a motorist to drive an automobile on the highway in such a manner that he is unable to stop in time to avoid a collision with an object within his range of vision. Guerin v. Forburger, 161 Neb. 824, 74 N.W.2d 870. Rain, snow, or ordinary hazards of visibility are not intervening conditions or hazards constituting an exception to the application of the rule. Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250. The District Court, in submitting the instruction on the range of vision doctrine acted properly. It was not the duty or the function or the power of the District Court to decide between the directly contrasting factual theories of this accident. An examination of the instructions in this case reveals that the trial court properly instructed on both the plaintiff's theory of the case and the defendant's theory about how the accident happened. Where the testimony is conflicting as to whether the range of vision rule is applicable or whether another factual version of how the accident occurred is supported by the evidence, then it becomes the duty of the court to submit both factual issues to the jury. Guerin v. Forburger, Supra; Brazier v. English, 177 Neb. 889, 131 N.W.2d 601. Instructions must be taken as a whole and so long as the law on each specific issue is correctly stated, the case fairly submitted to the jury, and the jury not misled by the instructions as a whole, prejudicial error may not be asserted. The plaintiff contends that the range of vision rule does not apply when the 'cone of vision' is penetrated from the side. Again the plaintiff asks us to accept her version of the accident. We know of no authority to support such a distinction, but in any event the defendant's evidence is unequivocally to the effect that his vehicle was directly in front of the decedent's vehicle, proceeding in the same direction and in the same lane of traffic, at the time when he was struck from behind by the plaintiff's decedent. There is no merit to the plaintiff's contention.

The plaintiff next contends that there was error in the admission of the opinion testimony of the defendant's expert, Professor James W. Harper. The vehicle of the plaintiff's decedent was towed to a parking lot and examined there by Professor Harper on June 30, 1970. We have difficulty in determining precisely what the plaintiff's contention is in this respect. Giving it maximum thrust, she apparently contends that the District Court erroneously permitted the witness to testify over foundational objection that the braking system appeared to be in the same condition as when towed from the accident scene and that he was allowed to give expert opinion without sufficient factual basis.

This witness' examination of the vehicle in the parking lot included the four wheels, the action of the brake pedal, and the right rear brake drum. Based upon this examination he gave his opinion that the...