Gorman v. Bratka
| Citation | 296 N.W. 456,139 Neb. 84 |
| Decision Date | 21 February 1941 |
| Docket Number | 30954 |
| Parties | MARY GORMAN, APPELLEE, v. JOHN BRATKA, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Evidence outlined in opinion held sufficient to support a finding of the jury that the negligence of defendant was the proximate cause of a collision between automobiles and resulting injuries to plaintiff, speed and right of way at an intersection of streets being issues of fact.
2. The overruling of a motion to direct a nonsuit for failure of proof is not erroneous, where the evidence will support a verdict in favor of plaintiff on the controverted issues.
3. An issuable fact pleaded by defendant in the answer to the petition is available to plaintiff as evidence at the trial.
4. Negligence of plaintiff's married daughter, who resides in her own home independently of her parents, and who, in driving an automobile with her mother as guest, collides with a car driven by defendant, is not imputable to the mother, in absence of the latter's own negligence, unless they are engaged in an enterprise giving the mother authority to direct or to assist in the operation and management of the car .
5. Where instructions as a whole correctly state the law applicable to the controverted issues, the verdict of the jury, if supported by sufficient evidence, will not be set aside because particular instructions considered separately contain mere informalities or omissions which are not misleading or confusing.
6. Harmless error in the admission of evidence is not sufficient ground for the reversal of a judgment.
7. A verdict of $2,500 for personal injuries described in the opinion held not excessive.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action by Mary Gorman against John Bratka to recover for personal injuries suffered by the plaintiff as result of the alleged negligence of the defendant in causing a collision between automobiles. From a judgment in favor of the plaintiff, the defendant appealed, and the plaintiff having died pending the appeal, the action was revived in the name of Marie Gorman Neiman, administratrix with will annexed of the estate of Mary Gorman, deceased.
Judgment affirmed.
Crofoot, Fraser, Connolly & Stryker, for appellant.
David O. Mathews, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ.
This is an action to recover damages in the sum of $ 10,000 for personal injuries suffered by plaintiff as the result of alleged negligence of defendant in causing a collision between automobiles at the intersection of Pine and Sixtieth streets in Omaha about 9:30 a. m. November 28, 1938.
At the time of the collision Mary Gorman, plaintiff, was riding north on Sixtieth street in a Ford sedan driven by her daughter, Marie Gorman Neiman, and defendant, John Bratka, was going east on Pine street in a Ford Tudor car driven by himself.
As stated at length in the petition, the proximate cause of the collision and of resulting injuries to plaintiff was negligence of defendant in the following particulars: Excessive speed of 40 miles an hour; failure to yield the right of way to the driver of the car in which plaintiff was riding; failure to so divert the course of his car as to avoid injury; driving the Tudor into the sedan; driving with his car out of control; violation of statutes and city ordinances regulating traffic at intersections.
In the answer to the petition defendant admitted he was driving his car at the time of the accident, but denied any negligence on his part, and alleged in substance that the accident was unavoidable as to him, that the collision was the direct and proximate result of gross negligence of plaintiff and her driver; that the Ford sedan was a family car and the driver thereof was an agent whose negligence was chargeable to plaintiff; that they failed to accord defendant the right of way, to keep a proper lookout, to have the Ford sedan under control, to divert their course on seeing defendant's peril, to comply with city ordinances regulating traffic. It is also alleged in the answer "That such negligence and want of care on the part of the plaintiff and her driver constituted more than slight negligence and directly contributed to the happening of said accident." The reply to the answer contained a general denial.
Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $ 2,500. From judgment therefor, defendant appealed.
On appeal the principal ground urged for reversal of the judgment is based on the following propositions asserted and argued by counsel for defendant: The Ford sedan in which plaintiff, Mary Gorman, was riding at the time of the accident was the family car of herself and her husband, Thomas Gorman. Their daughter, Marie Gorman Neiman, was their agent and driver. They were all occupants of the car when the collision occurred. The daughter was then performing for her parents a service coupled with a duty and was not in law a stranger to them. The parents were liable for their daughter's negligence to the same extent as they would have been had one of them been driving the family car. The evidence, including the physical facts, shows that the negligence of Marie Gorman Neiman as agent and driver for plaintiff was the proximate cause of the accident resulting in the latter's injuries. A motion at the close of the evidence to direct a verdict in favor of defendant was erroneously overruled. Whether defendant's position thus outlined is tenable depends on the evidence and the law applicable to the issues and the facts.
The driver of the car in which plaintiff was riding testified that she drove north on the east side of Sixtieth street toward the intersection at a speed of about 25 miles an hour and that defendant approached from the west on Pine street; that the weather was fair and the pavements dry; that when she was about a car length from the southeast corner of the intersection she saw defendant's car when possibly two car lengths from the southwest corner of the intersection; that she did what she could to get out of the way; that she drove on and defendant smashed right into her; that the collision occurred in the northeast corner of the intersection; that she observed defendant's car after she first saw it; that she would say it was going 40 miles an hour and she did not observe that it slowed down; that there was no other traffic in the intersection and nothing to prevent defendant from passing in the rear; that the car she was driving turned over and landed on its wheels after the impact and headed southwest; that it was struck at the left rear fender; that her father and mother were injured and taken to the hospital. Of similar import was the testimony of the driver's father and mother. This version of the collision was consistent with the locations of the cars when they came to rest and with the impressions made on them by the impact.
In charge of a bailiff the jury viewed the scene of the collision...
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