Gorman v. Bratka

• Decision Date: 13 June 1941
• Docket Number: 31062
• Citation: 298 N.W. 691,139 Neb. 718
• Parties: THOMAS GORMAN, APPELLANT, v. JOHN BRATKA, APPELLEE
• Court: Nebraska Supreme Court

298 N.W. 691

139 Neb. 718

THOMAS GORMAN, APPELLANT, v. JOHN BRATKA, APPELLEE

No. 31062

Supreme Court of Nebraska

June 13, 1941

APPEAL from the district court for Douglas county: JOHN W. YEAGER JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. A written statement signed by a party to an action, which is against his own interest, and which tends to establish or disprove a material fact, is competent to be received in evidence, when the proper foundation has been laid.

2. Under certain circumstances and conditions, the owner of an automobile may be a guest of the bailee driver and the driver's negligence not imputed to the owner.

Appeal from District Court, Douglas County; Yeager, Judge.

Action by Thomas Gorman against John Bratka to recover for personal injuries suffered in an automobile accident, wherein the defendant filed a cross-petition. From an adverse judgment the plaintiff appeals.

Judgment set aside, and cause remanded for a new trial.

David O. Mathews, for appellant.

Crofoot, Fraser, Connolly & Stryker, contra.

Heard before PAINE, CARTER and MESSMORE, JJ., and ELDRED and TEWELL, District Judges.

OPINION

PAINE, J.

This is an action for personal injuries suffered in an automobile accident. The jury returned a verdict for the defendant for $ 10 on his cross-petition, from which plaintiff, Thomas Gorman, appeals. A companion case, growing out of this same accident, is entitled Gorman v. Bratka, ante, p. 84, 139 Neb. 84, 296 N.W. 456, in which Mary Gorman, the wife of plaintiff in the case at bar, secured a verdict for $ 2,500, which was affirmed by this court in an opinion written by Judge Rose.

The plaintiff, Thomas Gorman, was 78 years of age, and had bought the 1937 Ford sedan for Marie Gorman Neiman, his married daughter, who lived at 5832 William street, with her husband, Clark Neiman, and their two children, some seven miles away from her parents, but the parents had never lived at their daughter's home.

Neither the plaintiff nor his wife had a driver's license. They had never driven this car, or any other, and it had always been kept at the home of the daughter, who was not a member of plaintiff's household, and the daughter and her husband supplied the oil, gas, and repairs for the car. At the time of the accident Mrs. Neiman, who had invited her father and mother to spend the day with her, was taking them from their home at Twenty-fourth and M streets out to her home.

The accident occurred about 9:30 a. m., November 28, 1938. The plaintiff was riding in the rear seat, and his wife, now deceased, was riding in the front seat with their daughter, Marie Neiman, who was driving the car.

It is charged that the defendant, while driving his 1935 Ford sedan in an easterly direction on Pine street in Omaha, entered the intersection at Sixtieth street in a grossly negligent and careless manner, and struck the car in which plaintiff was riding, inflicting serious personal injuries upon the plaintiff.

The specific negligence charged was in operating his car in excess of 40 miles an hour, failing to give the right of way to the car which had entered the intersection first, and in failing to have his car under proper control, and other items of negligence were charged.

The defendant admitted the collision, but charged it was the result of negligence of plaintiff and the driver of his car.

In the motion for a new trial, three prejudicial errors of the trial court are set out, as follows:

"44. That the court erred in refusing to receive, and so ruling, in evidence, as an admission against interest and as a part of the plaintiff's case, exhibit No. 15, being a written statement of the defendant, John Bratka, dated November 28, 1938, and duly identified, proved and offered in evidence.

"45. That the court erred in refusing to receive, and so ruling, in evidence, as an admission against interest and as a part of the plaintiff's case, such parts of said exhibit No. 15, mentioned in the next preceding paragraph, as were not controverted or denied by the defendant, said exhibit having been duly identified, proved and offered in evidence.

"46. That the court erred in refusing to receive in evidence, and so ruling, as an admission against interest and as impeachment evidence, said exhibit No. 15, being the written statement of the defendant, John Bratka, dated November 28, 1938, when offered as a part of the cross-examination of the defendant Bratka, said exhibit having been identified, proved and offered in evidence; and in refusing the offer of proof made with respect thereto by the plaintiff as a part of the cross-examination of the said defendant, John Bratka."

The evidence discloses that Al Hummel, an insurance agent, whose home was in Boise, Idaho, at the time of the trial, called the defendant to his office in Omaha, some four hours after the accident, and asked him to give a statement of just what happened at the time of the accident. The defendant sat in a chair next to Mr. Hummel, who took down the statement on a typewriter, making one, and possibly two, copies. The statement reads as follows:

"Omaha, Nebraska (Ex. 15)

November 28th, 1938.

"Report of John Bratka

"My name is John A. Bratka, I am 34 years old, married and I reside with my wife and one child at Tecumseh, Nebraska. I am in the grocery and meat business. On the 28th of November 1938 about 9 A. M. I had an accident while driving jy (my) 1935 Ford Tudor. The accident happened at the intersection of 60th and Pine Streets in Omaha, Nebraska. The facts are as follows:

"I was driving the car and my wife and son, John D. age 3, were in the front seat with me. My sister-in-law, Mrs. Fred Sampson of Weeping Water, Nebraska was riding in the rear seat. We had spent the night at Valley, Nebraska and we were just coming into Omaha when this accident occurred. We traveled off of our course and that is how the accident happened to happen where it did. We did not make any stop before this accident occurred.

"As I was going east on Pine Street I was going up a steep hill and I had my car in second gear. I was going about 15 or 20 miles per hour as I was going up the hill. I hesitated before crossing 60th street but I did not bring my car to a stop. There are no stop or slow signs at this intersection.

"All of a sudden I collided with a car which was going north on 60th Street. I did not see this car until we collided. I could not say how fast this car was going since I did not see it until we collided.

"The right front fender of my car collided with some part of the other car but I do not know what part. After the first impact the other car rolled over and landed on its wheels.

"After the accident the other car was about two or three feet to the north of the north curb of Pine Street and it was headed to the west. My car was up over the curb on the northeast corner of the intersection just southeast of the fire hydrant; just the front wheels of my car were up over the curb.

"A Mrs. C. W. Neiman was driving the other car and her mother and father, Mr. and Mrs. Thomas Gorman were in the car with her. Mr. and Mrs. Gorman were injured but they were conscious. We took Mrs. Gorman into a grocery store and she complained of her heart bothering her. Mr. Gorman was cut on the forehead.

"I was the only one in my car who received any injury at all. I have a bump on my left knee but I have not consulted a doctor. I am able to go about. My knee is not cut. Neither my wife, son or sister-in-law were injured in any way in this accident. Mr. and Mrs. Gorman were taken to the St. Joseph Hospital in an ambulance.

"When the two cars came together they were in the northeast quarter of the intersection. There was dirt in the northeast quarter of the intersection which was probably knocked off my car.

"This is a clear intersection and there is nothing on the southwest corner which obstructed my view.

"Before I started across the intersection I looked and the way appeared to be clear. I do not know where this car came from.

"The weather was clear and the pavement was dry at the time of the accident.

"I have read the above report and it is true and correct.

"Correction: My son was riding in the rear seat with my sister-in-law instead of the front seat as mentioned above.

"I have read the above report and it is true and correct.

"(Signed) John A Bratka"

The defendant, John Bratka, in direct evidence testified that he looked down Sixtieth street and could see Mrs. Neiman's car coming, and that it was going 35 or 40 miles an hour, and he put on his brakes and swerved to avoid hitting it.

Now, in this exhibit No. 15, which was offered on cross-examination he made this statement: "I could not say how fast this car was going since I did not see it until we collided." And again: "Before I started across the intersection I looked and the way appeared to be clear. I do not know where this car came from." Exhibit No. 15 was made and signed by defendant Bratka on the day of the accident, November 28, 1938, when the incident was fresh in his mind, while his testimony was given in the trial beginning January 19, 1940. They...