Gohlinghorst v. Ruess
| Decision Date | 26 October 1945 |
| Docket Number | 31932. |
| Citation | 20 N.W.2d 381,146 Neb. 470 |
| Parties | GOHLINGHORST v. RUESS et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When the defendant in a jury trial moves for a directed verdict at the close of plaintiff's evidence, such motion must be treated as an admission of the truth of all material and relevant evidence favorable to the plaintiff and of all proper inferences to be drawn therefrom, and if it tends to sustain plaintiff's cause of action, the case should be submitted to the jury.
2. But when other evidence of the plaintiff demonstrates to the extent that reasonable men cannot differ thereon, that such evidence is incapable of belief, the rule does not apply and a directed verdict may properly be granted.
3. Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded.
4. A trial court is not required to helplessly sit by and permit a litigant to toy with the processes of the court by insisting under oath at different times on the truth of each of two contradictory stories according to the exigencies of the particular occasion presenting itself.
5. Evidence examined and held insufficient to sustain a recovery by the guest against the host under the guest statute.
Fitzgerald Tesar & Welch, of Omaha, for appellant.
Kennedy Holland, DeLacy & Svoboda and Raymond Crossman, all of Omaha, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER and CHAPPELL, JJ.
Plaintiff commenced this action to recover damages for personal injuries which she sustained while riding as a guest in an automobile owned by the defendant William Ruess, and operated by the defendant Jane Schumacher. At the conclusion of plaintiff's evidence the court directed a verdict for the defendants. Plaintiff appeals.
The evidence adduced by the plaintiff when interpreted most favorable to her, as we are required to do in the case of a directed verdict, is substantially as follows: On October 18, 1941, plaintiff was invited by the defendants to accompany them from Omaha to Lincoln for the purpose of attending the Nebraska-Indiana football game being played on that date. It appears that William Ruess and his sister, Mrs. Schumacher, arrived promptly at 12 o'clock noon at the place where plaintiff and Jane Schumacher were employed. From that point on until the happening of the accident Jane Schumacher drove the car, plaintiff sat beside her in the front seat and Mr. Ruess and Mrs. Schumacher occupied the back seat. The evidence is that they proceeded west out of Omaha on the Dodge street road until they reached Highway No. 31, at which point they turned south. The accident occurred one mile south at the intersection of Highway No. 31 with an intersecting road known in this record as Pacific street.
The automobile in which defendants were riding was being driven at a speed of approximately 60 miles an hour. It appears that the parties had brought their lunch with them and as they were leaving Omaha the parties in the back seat began to eat it. The lunch was then passed up to the parties in the front seat, who also began to partake of it. Plaintiff testifies that on previous trips they had eaten their lunch on the way, but that Jane Schumacher had never before operated the car while cating her lunch. As the car turned south on Highway No. 31, Jane Schumacher was still eating lunch. As they approached the point of the accident, plaintiff testifies that Jane Schumacher was looking over some cookies which had been passed up to them and placed on the seat between them. While so doing she had only her left hand on the wheel. Plaintiff then saw a car entering the intersection from the left and said: 'Watch out, Jane.' Plaintiff testifies that she did not observe what Jane Schumacher did after the warning, but she was of the opinion that the car continued to the point of impact at a speed of at least 60 miles an hour. The plaintiff says that the car approaching the intersection from the east was in motion and that she did not see it stop or alter its course. She says that defendant's car was 185 to 190 feet north of the north side of the intersection when she first saw the car approaching from the east. The collision occurred in the northwest quadrant of the intersection. On cross-examination inquiry was made concerning the speed of the car approaching from the east. The court sustained an objection to the question on the ground that it was improper cross-examination, it not having been inquired about on direct examination. We think the inquiry was entirely proper. Plaintiff had testified that the car was in motion. Certainly she could be interrogated on cross-examination as to the speed of the car, it being an important fact under the issues. We think the trial court's ruling was too restrictive and that defendants' counsel were entitled, after plaintiff testified that she had seen the other car entering and proceeding across the intersection in which the collision occurred, to inquire on cross-examination into its speed, course of travel or any other fact bearing upon the cause of the accident.
On cross-examination it was developed that plaintiff had testified by deposition in a case growing out of the same accident brought by Anna K. Kelty, Special Administratrix, against William Ruess and Jane Schumacher. Plaintiff's testimony contained in the deposition was to the effect that she did not see the car approaching from the east until defendant's car reached a point 15 feet north of the north side of the intersection, at which time she exclaimed: 'Watch out, Jane!' She testified that she did not recall what Jane Schumacher was doing immediately prior to the accident. She further testified in the deposition that the car approaching from the east was 25 or 30 feet east of the east line of the intersection when she first saw it and that it was traveling 70 or 75 miles an hour.
It is evident from the record that she told a story which was very helpful to her host when the deposition was taken on February 18, 1942, and a story contradictory thereto on the material facts more than two years later that was beneficial to her in an action against the host. It is the contention of the defendants that where a plaintiff materially changes her sworn testimony in this manner to meet the exigencies arising in the trial of the case that it is discredited as a matter of law and should be disregarded.
We think the testimony of plaintiff was such that it cannot sustain a judgment in her favor. A plaintiff may not recite upon oath one statement of facts in one judicial proceeding and then to meet the exigencies of the occasion in the trial of a different suit, recite under oath an entirely different story. As was said in Gormley v. Peoples Cab, Inc., 142 Neb. 346, 6 N.W.2d 78, 80: 'Such conduct cannot be tolerated to the extent, when it is clearly apparent, of requiring a trial judge to submit the credibility of such testimony to a jury, and of permitting a party to mock...
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