Fahrenbruch v. Peter Kiewit Sons' Co.

• Decision Date: 29 May 1947
• Docket Number: 32236.
• Citation: Fahrenbruch v. Peter Kiewit Sons' Co., 27 N.W.2d 680, 148 Neb. 460 (Neb. 1947)
• Parties: FAHRENBRUCH v. PETER KIEWIT SONS' CO. et al.
• Court: Nebraska Supreme Court

27 N.W.2d 680

148 Neb. 460

FAHRENBRUCH v. PETER KIEWIT SONS' CO. et al.

No. 32236.

Supreme Court of Nebraska

May 29, 1947

Syllabus by the Court

In a law action, where a jury has been waived by the parties, the findings of the district court on issues tried have the effect of a verdict, and if the evidence supports the findings and judgment thereon, and there is no error in the proceedings, the judgment will be affirmed on appeal.

Carl H. Swanson, of Culbertson, for appellants.

J F. Ratcliff, of Trenton, for appellee.

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

CHAPPELL Justice.

This action was to recover damages because defendant company's tractor and heavy road-roller, alleged to have been negligently operated by the other defendant as its employee collided with plaintiff's combine on a highway then under construction and repair. By agreement, the issues were tried on the merits to the district court without a jury. At conclusion thereof, the court found in part as follows 'On consideration whereof, the court finds generally in favor of the plaintiff and against the defendants; that the proximate cause of the accident was the defendants' negligence, and that the plaintiff is entitled to recover damages; that the reasonable value of the plaintiff's combine prior to the accident was the sum of $1116.00 and the reasonable value of said combine after the accident was $350.00, and that plaintiff's damage amounts to $766.00. That the plaintiff is entitled to recover damages from the defendants in the sum of $766.00, with interest thereon at 6% per annum from August 12th, 1945, until paid.'

A judgment accordingly was awarded plaintiff. Defendants' motion for new trial was overruled and they appealed to this court, assigning as error substantially that the judgment was contrary to law and not sustained by the evidence. We conclude that defendants' assignments cannot be sustained.

This court has recently reaffirmed the rule that in a law action, where a jury has been waived by the parties, the findings of the district court on issues tried have the effect of a verdict, and if the evidence supports the findings and judgment thereon, and there is no error in the proceedings, the judgment will be affirmed on appeal. Schnell v. United Hail Ins. Co., 145 Neb. 768, 18 N.W.2d 112.

The primary issue in the case at bar was alleged negligence. In Fulcher v. Ike, 142 Neb. 418, 6 N.W.2d 610, 611, it was held that: 'The gist of negligence is failure to exercise the care of a reasonable and prudent person under a given set of circumstances.' In that connection we call attention to the fact that, contrary to defendants' contentions, the violation of a statutory duty is not a necessary prerequisite in order to establish actionable negligence. It may be established by evidence showing a breach of duty which one owes to another by reason of the relationship existing or the circumstances presented. 45 C.J., Negligence, § 18, p. 643; 38 Am.Jur., Negligence, § 14, p. 655.

We must bear in mind also that in negligence cases the standard of the duty to exercise the care of a reasonable and prudent person is ordinarily the same, but that the conduct required to fulfill that duty is different, dependent upon the facts and circumstances of each particular case.

The questions involved here are primarily factual but governed generally by the rule that where a highway under construction or repair is being used permissively in a limited manner by adjacent residents, it must be kept and maintained by the contractor in a reasonably safe condition for the use of those driving thereon, who are at the same time required to exercise reasonable care under the peculiar circumstances and conditions confronting them by keeping a constant lookout and vigilant caution for obstructions incident to the progress and completion of the work. Miller v. Abel Construction Co., 140 Neb. 482, 300 N.W. 405.

In the light of the foregoing rules we have examined the evidence, which is brief but...