Gerish v. Hinchey
| Decision Date | 01 July 1930 |
| Docket Number | 27195 |
| Citation | 231 N.W. 503,120 Neb. 51 |
| Parties | NETTIE L. GERISH, APPELLEE, v. MORRIS P. HINCHEY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
An instruction which places the burden of proof upon the wrong party and which misstates the law as to contributory negligence is erroneous.
A witness otherwise qualified is not incompetent to estimate the speed of an automobile solely from the fact that it is approaching him directly.
Misconduct of counsel in arguing a case to the jury in order to be available to the complaining party as error on appeal must ordinarily be objected to at the time it occurs.
The court will not reverse the judgment because of disqualification of one of the jurymen, if it appears from the record that appropriate questions on the part of complaining counsel would have developed such disqualification, but they were not asked.
Appeal from District Court, Douglas County; Troup Judge.
Suit by Nettie L. Gerish against Morris P. Hinchey, doing business under the trade-name of the M. P. Hinchey Laundry Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Crofoot Fraser, Connolly & Stryker and James T. English, for appellant.
Benjamin S. Baker and Ralph T. Wilson, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and EBERLY, JJ., and LIGHTNER, District Judge.
This is a suit by Dr. Nettie L. Gerish against the defendant, Morris P. Hinchey, on account of an accident which happened on April 3, 1928, at the intersection of Eighteenth and Binney streets in the city of Omaha. Mrs. Gerish recovered a judgment for $ 15,000 and defendant brings the case to this court by appeal. Mrs. Gerish was driving south at the time of the accident and claims that it was her intention to continue on south straight through the intersection to Farnam street. The driver of defendant's truck or laundry wagon was driving west and claims that it was his intention to continue on west, as his next stop was several blocks west of the intersection on the same street. Both Mrs. Gerish and the driver of the truck claim that he or she saw the other automobile when it was back several car lengths from the crossing; and each claims that he or she got into the intersection first. It was a clear morning and the accident happened at about 10:30 o'clock in the morning. Mrs. Gerish's version of the accident is that, after she observed the truck and saw that it was several car lengths from the intersection, she proceeded into the intersection and had got nearly through the same when she heard the noise of brakes being applied and looked back and saw the truck coming toward her and that it almost instantly struck her. The truck driver's version of the accident is that he reached the intersection first and that Mrs. Gerish cut in ahead of him and turned west, that he swerved his car to the left to go around her, and that she immediately turned south directly in front of his truck; that he also attempted to turn, but that it was too late to avoid a collision. The collision seems to have occurred on the southwest corner of the intersection and both vehicles were at the southwest corner of the intersection after the accident. Mrs. Gerish's Ford sedan was within a foot or two of the curb where it was rounded off at the southwest corner of the intersection and the truck, which had struck it at about the front door, was still against the sedan after the collision.
The parties also disagree as to the effects of the collision. Mrs. Gerish claims that the impact was so great that she was thrown from the driver's seat on the left side of her sedan through the right-hand door and out onto the pavement or curb. And Mrs. Brown, who lives in the fourth house west of the intersection on the south side of the street, testified that she saw her getting up from the pavement and get back into her automobile. On the other hand, the driver of the truck, the neighbors who lived in the first, second and third houses west of the intersection, the neighbor who lived in the house east of the intersection, and a man who was painting the house east of the intersection, and who was on a scaffold about fifteen feet above the ground where he had an unobstructed view, claim that Mrs. Gerish was not thrown out of her automobile but remained sitting at the driver's seat after the collision.
The witnesses also disagree as to the distance the Ford sedan was pushed by the impact of the collision, one side claiming that the back wheels were skidded sideways not more than a foot or two, and the other side claims that the back wheels were pushed sideways 15 or 16 feet.
It seems to be agreed, however, by all parties that Mrs. Gerish got out of the automobile directly after the accident and spent perhaps an hour or more measuring and going over the ground at the scene of the accident, and then walked home, a distance of two or three blocks. Most of the witnesses who saw her at that time claim they did not see any blood on her or other indications of injuries and thought that she was not hurt. It is conceded that Mrs. Gerish called Dr. Dunn on the day of the accident and Dr. Henry within two or three days afterwards and that she entered Lord Lister hospital on April 9, 1928, and remained in the hospital until the 12th of May, 1928.
The conflict in the medical evidence is even more marked, if possible, than the accounts of the accident. One group of doctors, among them some of the most eminent in Omaha, testified that Mrs. Gerish's injuries were severe and permanent. And she herself claims that she suffered injuries to the sacroiliac region of her back and to her limb which have completely disqualified her from following her profession. She claimed a 50 per cent. degree of deafness from the accident, and one of the doctors in describing her stated that her face was that of a cripple. On the other hand, another group of doctors, also including some of the most eminent in Omaha, testified that her injuries were slight in the extreme; that many of the various injuries she claims could not have resulted, even though she had been thrown out on the pavement, as she claims, and they accuse her of malingering.
The bill of exceptions contains 680 pages and the author of this opinion has read it with great care and made an abstract of the testimony. It would unnecessarily extend this opinion to give the evidence in detail and we have only stated it sufficiently to indicate the sharp conflict.
Defendant claims various errors, and in view of the sharp conflict in the evidence it would seem that, if any important mistake of law was made, or if counsel abused their privileges in argument, a new trial would have to be ordered.
One of the errors claimed was the court's instructions to disregard the evidence of the witness Peter D. Larr as to the speed of Mrs. Gerish's car as it approached and entered the intersection. Mr. Larr is the painter who was on a scaffold 15 feet from the ground painting the G. J. Hatz house on the southeast corner of the intersection. He claims that he had just moved his scaffold from another location and had just climbed up to this position when he noticed the Gerish automobile approaching at a rapid rate of speed; that he noticed its speed on account of the...
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