Ficke v. Gibson, 32845

• Decision Date: 27 December 1950
• Docket Number: No. 32845,32845
• Citation: 45 N.W.2d 436,153 Neb. 478
• Parties: FICKE v. GIBSON et al.
• Court: Nebraska Supreme Court

Page 436

45 N.W.2d 436

153 Neb. 478

FICKE v. GIBSON et al.

No. 32845.

Supreme Court of Nebraska.

Dec. 27, 1950.

Syllabus by the Court

1. Evidence as to conditions at the place of a traffic accident an appreciable time thereafter, such as the existence and location of marks or tracks, is admissible upon a proper showing that the conditions have not been changed in the meantime.

2. Violations of ordinances and traffic regulations constitute evidence of negligence only, which the jury may properly consider in determining a question of negligence and the degree thereof.

3. One who attempts to cross a street between intersections without looking is guilty of such negligence as will bar a recovery as a matter of law. If he testifies that he did look, it is implied that he looked in such a manner that he would see that which was in plain sight, unless some reasonable excuse for not seeing is shown.

4. Where a certain fact or group of facts, if established, leaves no room for men of ordinary intelligence to differ as to the legal effect thereof, it is proper to instruct the jury what such legal effect is.

5. The trial court is charged with the duty of informing the jury of the legal effect of facts which they find to be true from the evidence.

6. A driver of an automobile should have his car under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof will exercise due care.

7. Reasonable control by drivers of motor vehicles is such as will enable them to avoid collision with over vehicles operated without negligence in streets or intersections, and with pedestrians in the exercise of due care.

8. An instruction on the burden of proof which fails to inform the jury as to what their verdict should be in the event the evidence is equally balanced or preponderates in favor of the defendant is prejudicially erroneous.

W. F. Manasil, Burwell, Davis, Stubbs & Healey, Lincoln, for appellants.

McKillip, Barth & Blevens, Seward, Guy Laverty, Burwell, for appellee.

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

WENKE, Justice.

Melvin C. Ficke brought this action in the district court for Garfield County against Ray G. Gibson, doing business as Kearney Roofing Company, and Sam Staten. The purpose of the action is to recover damages resulting from personal injuries suffered by plaintiff when struck by a truck owned by defendant Ray G. Gibson. Plaintiff recovered a verdict. Defendants thereupon filed a motion for new trial and have appealed from the overruling thereof.

The accident in which appellee was injured happened on November 26, 1948, between 3:30 and 4:00 p. m. on State Highway No. 11 about three miles south of Burwell, Nebraska. At the point of the accident State Highway No. 11 runs a little northwest to the southeast but generally north and south. At the time appellee was returning to his home from Burwell. He was riding with a neighbor. His neighbor stopped his truck and let appellee get out. Appellee got out on the west side of the oil-mat. The highway at this point is surfaced with oil-mat or black-top some 26 feet in width. After getting out appellee proceeded to cross this black-top to get to his home, which is located at this point just east of the highway. While proceeding to cross he was struck by a truck.

The truck which struct appellee was owned by appellant Ray G. Gibson and was at the time being driven by appellant Sam Staten. Staten was an employee of Gibson and at the time was proceeding to Burwell to fix a roof, that being the business in which Gibson was engaged.

Without setting out the evidence in further detail it will suffice here to say that it is sufficient to raise issues for the jury as to whether appellant Staten was guilty of negligence in operating the truck which was the proximate cause of the accident and also whether appellee was guilty of contributory negligence such as might defeat his right to recover.

Appellants complain of the court's admitting evidence of foot and tire marks observed at the scene of the accident some 15 or 16 hours after the accident happened when there was no showing that the conditions had not been changed since the accident. They also complain of these witnesses being permitted to give their opinions, in the form of conclusions, as to the meaning thereof.

The accident happened about 3:30 or 4:00 p. m. on November 26, 1948. LeRoy C. Ficke and C. D. Ficke, brother and father respectively of appellee, testified they examined the scene thereof the next morning between 7:30 and 8:00 a. m. They were then permitted to testify as to the marks, both foot and tire, which they observed there and to state, in the form of a conclusion, that they were the marks made by the respective parties and how the accident happened. There was no affirmative showing that the conditions at the scene of the accident had not changed by the time it was visited by these two witnesses the next morning.

As stated in 9 Blashfield's Cyclopedia of Automobile Law and Practice, § 6179, p. 609: 'Evidence as to conditions at the place of a traffic accident an appreciable time thereafter, such as the existence and location of marks or tracks, is admissible upon a proper showing that the conditions have not been changed in the meantime. * * * A different rule applies, however, where there is no showing that the conditions have not been changed since the accident.'

The foregoing text goes on to state: 'While it is a matter of discretion with the court whether the length of time after the accident is sufficient to bar such testimony, ordinarily the fact that testimony as to conditions relates to a time somewhat remote from the accident affects its weight rather than its competency.'

In this respect we said in Potach v. Hrauda, 132 Neb. 288, 271 N.W. 795, 796: 'Plaintiff contends that the court unduly restricted him in his attempt to produce evidence of the location of oil spots and glass in and about the scene of the accident. The witnesses produced did not arrive at the scene of the accident until almost three hours after it occurred. There is evidence in the record that there was much traffic over the highway and that the glass had been kicked and swept off the pavement to prevent damage to tires. We find no prejudicial error in the ruling of the trial court, under the circumstances of this case, that the evidence tendered was too remote.'

As stated in Billingsley v. Gulick, 252 Mich. 235, 233 N.W. 225, 226: 'A witness visited the scene early the next morning, and, over objection, was permitted to testify that there was a pool of blood on the gravel at the side of the pavement, also a deep impression in the gravel for about 30 feet from the south to the pool of blood, that a metal cap of an oil bottle was about 3 feet from the pavement and south of the pool of blood, and a shoe and a side windshield from a roadster were over in a dooryard.

'The accident happened between 11 and 12 o'clock at night, and upon a much-traveled road, and the court was in error in receiving the testimony of the finding and location of articles, without affirmative proof that there had been no change of position after the accident.'

As stated in 5 Am.Jur., Automobiles, § 633, p. 852: 'Evidence as to tracks or other marks made by motor vehicles on the pavement or roadway is generally admissible in civil actions for injury or damage, where the witness testifying had an opportunity to make an observation of the marks before any change had taken place. A proper foundation for the introduction of such evidence should first be laid, however, by showing how soon after the accident the witness observed the markings, his opportunities for accurate observation, and any other factors explanatory of the skid marks or tracks, and the conditions under which they were made.'

There is no direct proof in the record that the conditions at the scene of the accident, with reference to the foot marks and tire tracks or skid marks, were the same the next morning as they had been the previous afternoon immediately after the accident. Therefore it was error to admit the evidence relating thereto as of the next morning. Whether, considering all of the facts and circumstances disclosed by the record, it was prejudicial we need not decide because other errors complained of require a reversal and retrial.

In regard to the second part of the claimed error appellee's witnesses did not only testify that the foot marks or tracks were those of appellee and the tire marks or skid marks were those of appellant Gibson's truck but referred to them as such in testifying and, by their location, described how and where the accident happened.

As stated in Chicago, R. I. & P. Ry. Co. v. Holmes, 68 Neb. 826, 94 N.W. 1007, 1009: 'He should have been required to state the facts from which his opinion was derived, so long as it was practicable to place those facts before the jury, and to state what would be a prudent and careful course in doing what Oakleaf had to do. The jurors would then have been left to form their own opinion from such facts and from the evidence as to what would be a proper way of doing the work. It is contended on behalf of the plaintiff that the error was not prejudicial, because the conclusion was one which the jurors must have drawn necessarily from the facts if the witness had not given his opinion. We cannot agree.'

As stated in In re Estate of Potts, 144 Neb. 729, 14 N.W.2d 323, 326: 'The objections to these questions should have been sustained as calling for the conclusion of the witness.'

We said in In re Estate of Potts, supra: 'While objections to conclusions of fact should ordinarily be sustained by the trial court, yet where there is other competent evidence on the subject in the record, their improper admission will not be considered as reversible error where prejudice is not shown.'

Here ap...