Eden v. Klaas

• Decision Date: 28 March 1958
• Docket Number: No. 34357,34357
• Citation: 166 Neb. 354,89 N.W.2d 74
• Parties: John EDEN, a minor, by Claude Eden, his next friend and natural guardian, Appellee, v. Dr. Richard E. KLAAS, Appellant.
• Court: Nebraska Supreme Court

Page 74

89 N.W.2d 74

166 Neb. 354

John EDEN, a minor, by Claude Eden, his next friend and natural guardian, Appellee, v. Dr. Richard E. KLAAS, Appellant.

No. 34357.

Supreme Court of Nebraska.

March 28, 1958.

Syllabus by the Court.

1. A child, 5 years of age, may not properly be charged with contributory negligence.

2. The negligence of the operator of an automobile in which a child of 5 years is riding as a guest can not be imputed to such child.

3. Where independent tortious acts of two persons combine to produce an injury indivisible in its nature, either or both tort-feasors may be held for the entire damage, not because each is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury.

4. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to a jury.

5. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

6. A trial court is not required to give instructions in the form presented. It is sufficient in that respect if the trial court fairly and correctly instructs the jury on all the issues.

7. The trial court should refuse a requested instruction that is not applicable to any issue of fact submitted to the jury.

8. Where a party charged with negligence suffered a complete loss of memory due to injuries sustained in an accident, it is not prejudicial error for the trial court to refuse to instruct that a presumption exists that he was free from negligence where there is evidence tending to establish negligent conduct on his part.

9. A party is entitled on cross-examination to show the interest of a witness in the litigation as affecting his credibility, but the limits of such cross-examination are ordinarily subject to the discretion of the trial judge, and, unless abused, its exercise is not error.

10. In an action for damages, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the sound discretion of the jury; and it will not be disturbed on appeal unless it can be said, as a matter of law, that upon a consideration of all the evidence the amount of the verdict is excessive.

Frederick M. Deutsch, Norfolk, Warren G. Albert, Columbus, Gordon L. Gay, Norfolk, for appellant.

Brogan & Brogan, Madison, Wagner, Wagner & Conrad, Columbus, for appellee.

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

CARTER, Justice.

This is an action for damages brought by a guest in an automobile driven by his father at the time it became involved in a collision with an automobile driven by the defendant. The jury returned a verdict for the plaintiff in the amount of $2,500. Judgment was rendered in this amount, and the defendant has appealed.

The collision involved in the present action occurred at a road intersection located 2 miles south and 1 mile west of Humphrey, Platte County, Nebraska, on November 4, 1955, at about 4:30 p. m. Both intersecting roads were graveled, level, and unprotected by stop signs. Immediately prior to the accident the automobile in which the plaintiff was riding was being driven by his father in an easterly direction toward the intersection at a speed of about 40 miles an hour. The automobile of the defendant was being driven north toward the intersection, the defendant entering the intersection from plaintiff's right. The collision occurred near the center of the traveled portion of the intersection. The evidence shows that the driver of the car in which plaintiff was riding looked to his right when 150 to 200 feet from the intersection and did not see defendant's automobile approaching from the south. He admittedly did not look again to his right. He was guilty of contributory negligence sufficient to bar any recovery by him as a matter of law, as this court held in the companion case of Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643.

The plaintiff was a boy, 5 years of age at the time of the accident. He was riding in the front seat between his father and his brother Richard when the collision occurred. This plaintiff, a boy 5 years of age, is incapable of being charged with contributory negligence. Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367. In addition thereto, in his capacity as a guest in his father's automobile, the negligence of the father is not imputable to him. Burhoop v. Brackhan, 164 Neb. 382, 82 N.W.2d 557.

It is the rule that where the negligence of the driver of an automobile, in which a person is riding as a guest, is the sole proximate cause of a collision in which the guest is injured, the guest cannot recover for such injuries from a third person. But where such injuries are the result of the negligent acts of his host and the driver of the other car participating in the collision, either or both tort-feasors may be held for the entire damage because the negligent acts of each are regarded in law as a cause of the injury. Burhoop v. Brackhan, supra. The sole question as to the liability of the defendant is, therefore, whether or not the evidence is sufficient to sustain a verdict finding the defendant guilty of negligence which, together with the negligence of plaintiff's host, combined to produce plaintiff's injury.

The defendant testified that because of the injuries he sustained in the accident he suffered a loss of memory and was unable to recall any of the circumstances surrounding the accident.

The evidence of negligence on the part of the defendant is largely dependent upon the sufficiency of the evidence of Mark Eden, the 13-year-old brother of the plaintiff, who was riding in the back seat of the Eden car, which, according to the evidence of his father, approached the intersection at a speed of 40 miles an hour. Mark Eden testified that when the Eden car was about 100 feet from the intersection he saw the Klaas car approximately 200 feet south of the intersection. He turned and looked at his father and before he could speak the collision occurred. During the period that he observed the Klaas car he said that it appeared to be in the center of the road, but that it was skidding and swerving from one side of the road to the other. He testified on cross-examination that he concluded the defendant had applied his brakes at that time. The witness was properly precluded from testifying to the speed of defendant's car because of a want of foundation upon which to base an estimate of speed. It is clear, however, that the jury could properly infer from the evidence of this witness that defendant's car was traveling at a greater speed than the Eden car, based on the distances each was from the intersection when defendant's car was observed by the witness. The jury could also infer that defendant was driving at such a speed that he was unable to stop his car within 200 feet in order to avoid the accident. The evidence tends to establish the want of proper control of his car by the defendant rather than the rate of speed at which he was traveling. We think the jury could properly conclude from this evidence that defendant was negligent, the credibility and weight of Mark Eden's evidence being for the jury to determine. In testing the sufficiency of the evidence to support a verdict it must be considered in the light most favorable to the successful party in accordance with the rule announced in Kohl v. Unkel, 163 Neb. 257, 79 N.W.2d 405. It is elementary that a verdict of a jury will not be set aside by this court unless it is clearly wrong. We cannot say as a matter of law that such is a fact in the present case. The evidence was sufficient to take the case to the jury on the question of defendant's negligence.

The defendant contends that evidence of excessive speed was based on a time-and-distance-traveled computation made on approximate factors only and, consequently, the result was speculative and conjectural, and insufficient to support a verdict. In support of this contention defendant cites Lofgren v. Omaha & C. B. St. R. Co., 103 Neb. 723, 174 N.W. 222, and Burns v. Harfst, 42 Wash.2d 795, 259 P.2d 379. We do not think the rule announced in these cases has any application here. The trial court meticulously refused to permit Mark Eden to testify to the speed of defendant's car because of its speculative and conjectural foundation. There is no evidence in the record as to the speed of defendant's car, other than the evidence of Mark Eden that it was skidding and swerving as the result of the application of brakes when it was 200 feet from the intersection, and the conclusion that could properly be drawn therefrom that defendant was unable to control his car within that distance and avoid the accident. This evidence raised the factual issue as to whether or not defendant was driving his automobile at a speed that was reasonable and proper under the circumstances.

Defendant, by his assignments of error numbered 3 to 9, inclusive, claims error in that the trial court by its instruction No. 1 set forth allegations of fact which had no support in the evidence. We have examined the instruction with reference to the assignments of error directed at its correctness and find that the court committed no prejudicial error in the respects claimed.

Def...