Graves v. Bednar

• Decision Date: 23 December 1960
• Docket Number: No. 34781,34781
• Citation: 107 N.W.2d 12,171 Neb. 499
• Parties: Harry GRAVES, Appellee, v. Richard J. BEDNAR, Appellant.
• Court: Nebraska Supreme Court

Page 12

107 N.W.2d 12

171 Neb. 499

Harry GRAVES, Appellee, v. Richard J. BEDNAR, Appellant.

No. 34781.

Supreme Court of Nebraska.

Dec. 23, 1960.

Syllabus by the Court

1. A new trial is to be granted for a legal cause and where it appears that a legal right has been invaded or denied. A new trial is not to be granted for arbitrary, vague, or fanciful reasons.

2. Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.

3. Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

4. In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.

5. It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

6. It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.

7. In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.

8. Negligence is a question of fact and may be proved by circumstantial evidence. All the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of.

9. Instructions to a jury must be considered together, so that they may be properly understood, and, if as a whole, they fairly state the law applicable to the evidence when so construed, error cannot be predicated on the giving thereof.

10. Instructions must be considered and construed together, and if they are not sufficiently specific in some respects, it is the duty of counsel to offer requests for instructions that will supply the omission, and, unless this is done, the judgment will not ordinarily be reversed for such defects.

11. The reading by the official reporter of the testimony of a witness examined on the trial is within the spirit if not within the letter of section 25-1116, R.R.S.1943, since the stenographic reporter's notes of the testimony are liable to be more accurate than the judge's recollection of what was testified to.

12. Proof of misconduct on the part of a jury to avoid a verdict must be of such a character that prejudice may be presumed. Evidence of misconduct which is to the advantage of the party complaining does not afford a basis for a new trial.

Kennedy, Holland, DeLacy & Svoboda, William P. Mueller, Omaha, for appellant.

Wear, Boland, Mullin & Walsh, Theo. L. Kowalski, Norman Denenberg, Omaha, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Harry Graves, brought this action against defendant, Richard J. Bednar, seeking recovery of damages for personal injuries, hospital and medical expenses, and damages to his motorcycle alleged to have been proximately caused by specified negligence of defendant when his car and plaintiff's motorcycle collided at what is shown by the evidence to be the intersection of Dodge Street, herein called Dodge, and Happy Hollow Boulevard, herein called the Boulevard, in Omaha.

Defendant's answer denied that he was guilty of any negligence, and alleged that any injuries or damages suffered by plaintiff were the direct and proximate result of plaintiff's own specified negligence which caused or contributed to the accident. Defendant's prayer was for dismissal of plaintiff's action. Plaintiff's reply was in the nature of a general denial.

Upon trial to a jury, the parties each adduced evidence, and defendant's motion for directed verdict, together with plaintiff's motions to not submit the issue of plaintiff's alleged contributory negligence to the jury and to instruct that defendant was guilty of negligence as a matter of law, and submit only the issue of damages, were overruled. Thereupon, the issues of negligence and contributory negligence were submitted to the jury and it returned a verdict for defendant. A judgment was rendered accordingly for defendant, and thereafter the court sustained plaintiff's motion for new trial and granted a new trial. Thereafter, defendant appealed, assigning and arguing that the trial court erred in granting a new trial because no error prejudicial to plaintiff occurred in the trial, and the record showed no legal reason for granting a new trial. We sustain defendant's assignment.

On the other hand, plaintiff's brief contended that the trial court properly granted a new trial for reasons, to wit: (1) That instruction No. 8 given by the court was erroneous because it improperly and incompletely advised the jury with relation to the duty of a left-turning driver in a heavily traveled intersection protected by traffic lights; (2) that for want of sufficient evidence, the court erred in submitting the issue of plaintiff's alleged contributory negligence to the jury; (3) that the court erred in submitting the issue of defendant's alleged negligence to the jury because the evidence disclosed that he was guilty of negligence as a matter of law; and (4) that the jury misinterpreted its duties and engaged in conjecture, speculation, and misconduct in reaching its verdict which denied plaintiff a fair and impartial trial. We do not sustain plaintiff's contention.

There are well-established, applicable rules of law which are controlling in cases such as that at bar. In that connection, as recently as Bryant v. Greene, 166 Neb. 520, 89 N.W.2d 579, 580, we reaffirmed that: 'A new trial is to be granted for a legal cause and where it appears that a legal right has been invaded or denied. A new trial is not to be granted for arbitrary, vague, or fanciful reasons. * * *

'Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.

'Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.'

In Owen v. Moore, 166 Neb. 239, 88 N.W.2d 768, we held: 'In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.'

In Snyder v. Farmers Irr. Dist., 157 Neb. 771, 61 N.W.2d 557, 559, we held: 'It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

'It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.'

In Granger v. Byrne, 160 Neb. 10, 69 N.W.2d 293, 295, we held: 'In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.'

In Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 822, we held: 'Negligence is a question of fact and may be proved by circumstantial evidence. All the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of. * * *

'One having the right-of-way may not on that account proceed with disregard of the surrounding circumstances, nor is he thereby relieved from the duty of exercising ordinary care to avoid accidents.'

In Styskal v. Brickey, 158 Neb. 208, 62 N.W.2d 854, 857, we held: 'A 'go' signal at a street intersection confers no authority on the driver of an automobile who receives this signal to proceed across that intersection regardless of other persons or vehicles that may already be within it. It is not a command to go, but a qualified permission to proceed lawfully and carefully in the direction indicated.

'A motor vehicle having started to cross an intersecting street in accordance with the signal light is ordinarily entitled to complete the crossing notwithstanding a change in lights.

'A vehicle entering a street intersection with a traffic light in his favor is under obligation to use due care and to yield the right-of-way to vehicles in the intersection. His right-of-way is subject to the rights of those already in the intersection.'

In Bell v. Crook, 168 Neb. 685, 97 N.W.2d 352, 356, we held: 'All travelers are required to exercise due care in coming to and crossing an intersection of public highways.'

In Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758, 762, we held: 'The lawfulness of the speed of a motor vehicle within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing. * * *

'Instructions to a jury must be considered together, so that they may be properly understood, and, if as a whole they fairly state the law applicable to the evidence when so...