Gain v. Drennen, 33673

• Decision Date: 22 April 1955
• Docket Number: No. 33673,33673
• Parties: Phil GAIN, a Minor, by Raymond A. Gain, his father and next friend, Appellee, v. Claude W. DRENNEN, Appellant.
• Court: Nebraska Supreme Court

Page 916

69 N.W.2d 916

160 Neb. 263

Phil GAIN, a Minor, by Raymond A. Gain, his father and next friend, Appellee, v. Claude W. DRENNEN, Appellant.

No. 33673.

Supreme Court of Nebraska.

April 22, 1955.

Syllabus by the Court.

1. In an action where the trial court has sustained a motion for a new trial without assigning reasons therefor, appropriate procedure on appeal is for the appellant to bring the record here with an assignment that the court erred in granting a new trial and submit it for critical examination. The duty then devolves upon the appellee to point out the prejudicial error which he contends justifies the granting of a new trial.

2. It is the duty of the trial court to instruct fully upon the theory of a party to an action if the theory finds support in the evidence.

3. It is error to submit the issue of contributory negligence to a jury if such issue finds no support in the evidence.

4. Independent of statute or city ordinance the operator of a motor vehicle on a highway or city street is under a duty to exercise ordinary care to avoid striking a person on a highway or city street.

5. There is no hard and fast rule for demarcation between that which is and that which is not res gestae, but a declaration to be competent evidence as part of the res gestae must have been made at such a time and under such circumstances as to raise a presumption that it was the unpremeditated and spontaneous explanation of the matter about which made.

Kennedy, Holland, DeLacy & Svoboda, J. A. C. Kennedy, Jr., Omaha, for appellant.

Robert E. McCormack, Robert D. Mullin, Omaha, for appellee.

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 Phil Gain, a minor, by Raymond A. Gain, his father and next friend, plaintiff and appellee, against Claude W. Drennen, defendant and appellant. The first cause of action is for damages for injuries claimed to have been sustained by him as the result of an accident which occurred on May 6, 1953, at the intersection of Forty-second and Leavenworth Streets in Omaha, Nebraska. Plaintiff claims that the accident was the result of negligence on the part of the defendant. Phil Gain is a minor child and the son of Raymond A. Gain. The second cause of action is one on behalf of Raymond A. Gain for the recovery of hospital and doctor bills in the care of Phil Gain following as a consequence of his injuries. This cause of action was assigned to Raymond A. Gain. In consequence of this assignment both causes of action were prosecuted in the name of and in behalf of Phil Gain.

Issues were joined and a trial was had to a jury. The verdicts on the two causes of action were separate and both of them were in favor of defendant and against the plaintiff. After verdict the plaintiff filed a motion for new trial which was sustained. The appeal here is from the order of the court sustaining the motion for a new trial.

The order sustaining the motion for new trial contains no reason therefor. Under such circumstances appropriate procedure is for the appellant to bring the record here with an assignment that the court erred in granting a new trial and submit it for critical examination. The duty then devolves upon the appellee to point out the prejudicial error which he contends justifies the granting of a new trial. The appellant then may reply to the contentions made by the appellee. Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772; Keiserman v. Lydon, 153 Neb. 279, 44 N.W.2d 513; In re Estate of Fehrenkamp, 154 Neb. 488, 48 N.W.2d 421. This procedure has been substantially followed in this case.

In the light of the issues made by the pleadings it becomes necessary, as to the first cause of action, to consider only the questions presented by the plaintiff. As to the second cause of action it becomes necessary to consider the issue of contributory negligence. This will be made clear later herein.

As indicated the accident occurred at Forty-second and Leavenworth Streets in Omaha, Nebraska. Leavenworth Street runs east and west and at this location is 54 feet wide. East-bound and west-bound street car tracks are in the street near the center. Forty-second Street extends north and south and is 40 feet in width. The intersection is protected by traffic lights on all four corners. Leavenworth is a very busy thoroughfare particularly as regards east and west traffic. Evidence of plaintiff discloses that at about 5:30 p. m. on May 6, 1953, Phil Gain was on the curb at the southwest corner of the intersection where he waited until the traffic light turned green for north and south traffic when he started north across the intersection in what was regarded as the west cross walk. After he had gone 10 or 15 feet the automobile of the defendant driven by him came from the west and ran into plaintiff after which he was found near the east cross walk or near the east line of Forty-second Street.

The plaintiff charged negligence against the defendant in 12 specifications. The answer to the charge of negligence was a general denial. The court in its instructions submitted only five of them.

In his brief the plaintiff does not contend that there was any impropriety in the submission of the five specifications. His complaint in this connection is that it was error to fail and refuse to submit some of the others.

Of course it is the duty of the court to instruct fully upon the theory of a party to an action if the theory finds support in the evidence. Dunlap v. Welch, 152 Neb. 459, 41 N.W.2d 384.

Three of the specifications submitted described the duty of the defendant in the operation of his automobile with regard to traffic signals. One described his duty under city ordinances and one described his duty to keep a proper lookout. This last is as follows: 'In failing to keep a proper lookout for pedestrians and especially the person of this plaintiff.'

Three specifications pleaded but not submitted were: 'In failing to accord Plaintiff the unhampered use of that portion of the street to which he was rightfully entitled,' 'In failing to seasonably apply his brakes and to slacken the speed of his vehicle or to stop same before colliding with Plaintiff,' and 'In failing to use the means at his disposal to avoid colliding with the Plaintiff after Defendant saw or, in the exercise of ordinary...