Gilliland v. Wood

• Decision Date: 05 March 1954
• Docket Number: No. 33495,33495
• Parties: GILLILAND v. WOOD.
• Court: Nebraska Supreme Court

Page 147

63 N.W.2d 147

158 Neb. 286

GILLILAND v. WOOD.

No. 33495.

Supreme Court of Nebraska.

March 5, 1954.

Syllabus by the Court

1. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.

2. The submission of issues to the jury, which are not pleaded and upon which there is no evidence, is erroneous, and, if prejudice results, requires a reversal of the judgment.

3. An immaterial or harmless error in the proceedings below is not a ground for a reversal on appeal.

4. Where the evidence shows that the operator of an automobile involved in an accident had a strong odor of intoxicating liquor on his breath, it is not error for the trial court to instruct with reference thereto.

Chambers, Holland & Groth, Lincoln, Dryden, Jensen & Dier, Kearney, for appellant.

Blackledge & Sidner, Kearney, for appellee.

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

CARTER, Justice.

This is an action to recover damages for wrongful death resulting from an automobile accident. It was commenced by the administrator of the estate of Marian Gilliland against Fred Wood and Lloyd L. Bickel. The jury returned a verdict against the defendant Wood in the amount of $3,250 and judgment was entered thereon.

The evidence shows that Wood was driving an automobile owned by Bickel at the time of the accident. The trial court directed a verdict for Bickel at the close of all the evidence. No cross-appeal was taken from this ruling. The verdict was against Wood alone, and Bickel is no longer a party to the action.

The evidence shows that on March 24, 1952, Marvin A. Keith was driving east from Kearney towards Shelton, Nebraska, at about 7:20 p. m. He was accompanied by Lorraine Smith, who is now his wife, and the deceased, Marian Gilliland. All were riding in the front seat with Marian sitting on the right side and Lorraine sitting in the middle. Marian was killed in the accident and the Keiths, who suffered very severe injuries, are unable to recall anything that happened immediately preceding the collision. They did testify that they remember passing a certain cafe as they left Kearney, and that they were then driving east on the south side of the center line of the highway. From that time on they have no recollection of what occurred.

The defendant Wood testified that he was employed by Lloyd L. Bickel to feed and care for a herd of cattle on the Kearney Air Base, approximately 5 miles east of Kearney. After completing his work for the day, Bickel permitted him to use his automobile to return to his home in Kearney. He testified that he drove to the south entrance of the air base and turned west on U. S. Highway No. 30. At a point about one-half mile west of the entrance he said he saw a car about 30 feet northwest of him which appeared to come out of the borrow pit on the north side of the road. He testified that the car was traveling about 10 miles per hour and that he had no opportunity to avoid the collision. All of the persons involved in the accident were unconscious when Don Slaughter, a farmer living close by, arrived on the scene.

Don Slaughter was the first to arrive at the place of the accident. He was standing in his farmyard about 100 feet north of the highway and 200 feet west of the point of the collision when it occurred. He testified that he got into his car and arrived at the wreck within a minute or two after it happened. He stated that no cars passed by prior to his arrival. The car driven by Wood was on the north side of the road on the shoulder, headed east, with the right front wheel barely on the pavement. The Keith car was headed northeast with its front wheels in the center of the south half of the highway. The Keith car was about 25 feet east of the Wood car. Defendant Wood was on the south shoulder with his head to the east about 25 feet west of the Keith car. The three people who were riding in the Keith car were east of it on the shoulder of the highway. There was a lot of debris such as dirt, chrome, and glass on the highway. Most of it was in the center and south portion of the road. The highway was clear of snow and ice but the fields and borrow pits were full of snow. There were no car tracks in the borrow pits on either side of the highway. No traffic passed the scene of the accident until the sheriff and the Kearney fire department emergency unit arrived. These facts were verified by the sheriff and other witnesses.

Sheriff Lloyd L. Frank testified that the Wood car had chains on the rear wheels. There were no chains on the Keith car. He testified to finding chain marks on the north side of the center line of the highway about 32 feet east of the front end of the Wood car. The east chain mark was about 6 inches from the center line and the west chain mark was from 18 inches to 2 feet north of the center line, the inference being that the front of the Wood car was necessarily south of the center line when the chain marks were made.

Photographs of the automobiles were placed in evidence. The right front and side of the Wood car were badly damaged. The bumper of the Keith car was wedged into the damaged portion of the Wood car at and above its damaged right front wheel. The Keith car appears from its picture to have been hit almost head-on. The damage to the right front side of the Wood car supports the inference drawn from the chain marks that it had crossed to its left across the center line and had been struck on its right side.

There is evidence in the record that there was a strong odor of...