Hamilton v. Omaha & Council Bluffs Street Ry. Co.

• Decision Date: 03 February 1950
• Docket Number: No. 32694,32694
• Citation: 152 Neb. 328,41 N.W.2d 139
• Parties: HAMILTON v. OMAHA & COUNCIL BLUFFS STREET RY. CO.
• Court: Nebraska Supreme Court

Page 139

41 N.W.2d 139

152 Neb. 328

HAMILTON v. OMAHA & COUNCIL BLUFFS STREET RY. CO.

No. 32694.

Supreme Court of Nebraska.

Feb. 3, 1950.

Syllabus by the Court.

1. In an action where the evidence produced by the plaintiff is not sufficient to support a verdict in his favor, it is the duty of the trial court to direct a verdict for the defendant.

2. In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.

3. If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.

4. In considering whether or not a motion by a defendant for directed verdict should have been sustained, the motion must be treated as an admission of the truth of all material and relevant evidence submitted by the plaintiff.

5. In a case where negligence or contributory negligence is interposed as a defense, the court may direct a verdict in favor of the defendant based thereon only if it clearly appears that the negligence of the plaintiff was more than slight when compared with that of the defendant.

6. As a general rule it is negligence as a matter of law for a motorist to drive an automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area illuminated by his lights.

7. Where, however, different minds may reasonably draw different conclusions or inferences from the evidence or there is a conflict in the evidence as to whether or not negligence or contributory negligence has been established, the question is for the jury.

8. It is the duty of the court to instruct on the issues tendered by a defendant in an answer or cross-petition if they are supported by evidence and a failure so to do is prejudicial error.

9. When negligence as a proximate cause is charged against a plaintiff by a defendant in an answer it is sufficient as a charge of contributory negligence.

Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Wear & Boland, Omaha, for appellee.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action by Dwain R. Hamilton, plaintiff and appellee, against the Omaha & Council Bluffs Street Railway Company, defendant and appellant, for damages for personal injuries and damage to property and a cross action by the defendant against plaintiff for damage to property.

This cause was tried to a jury. The jury returned a verdict in favor of plaintiff for $1,500 on his action and also in his favor on defendant's cross action. Judgment was entered on the verdict. Thereafter in due time the defendant filed a motion for judgment in its favor on the action and cross action notwithstanding the verdict and a motion for new trial. The two motions were overruled.

From the judgment and the rulings on the motion for judgment notwithstanding the verdict and the motion for new trial the defendant has appealed.

The action grew out of a collision which occurred between and automobile owned and operated by the plaintiff and a bus belonging to the defendant which was being used to transport passengers over and upon streets of the city of Omaha, Nebraska. The place of the collision was the intersection of Forty-first Avenue and Cuming Street and the time was December 19, 1947, at about 7 p. m. The time, place, and results of the accident are not in substantial dispute. The only substantial dispute involved in this appeal relates to the cause and responsibility for the occurrence.

Cuming Street at the point in question extends east and west, is a four-lane street, and is 46 feet in width from curb to curb. Forty-first Avenue comes into Cuming Street from the south. It does not extend north of Cuming Street. It is 26 feet in width from curb to curb. At the point where Forty-first Avenue intersects it, Cuming Street is protected by a stop sign.

At the time of the collision the bus had come into the intersection from the south and the front end thereof had reached about the center of Cuming Street and was in the act of turning west or to the left. The bus was about 28 feet in length. When it arrived in this position the plaintiff came from the west in the outer or south traffic lane of Cuming Street and ran into the left side of the bus with his automobile. The point of contact was slightly to the front of the center of the bus.

The plaintiff by his petition declared that the accident was caused by the negligence of the defendant in that the driver of the bus (1) failed to bring the bus to a stop at the stop sign before entering Cuming Street in violation of the statutes of Nebraska and the ordinances of the city of Omaha, (2) that he failed to keep a proper lookout for traffic, (3) that he failed to sound any signal or warning of his approach, (4) that he failed to have the bus under proper control, and (5) that he failed to bring his bus to a stop or to change, alter, or divert the course thereof when he saw or, in the exercise of ordinary care, should have seen the plaintiff in a position of peril. No further reference will be made to the first and fourth of these specifications of negligence since by the instructions they were not submitted to the jury for consideration.

The defendant by answer after a general denial declared that the accident was caused by the negligence of the plaintiff in that (1) he carelessly and negligently drove his car at an excessive and negligent rate of speed under the circumstances, (2) he carelessly and negligently failed to accord to the defendant's bus the right-of-way although it was in the intersection first and was in the act of making a left-hand turn, (3) he carelessly and negligently failed to have his car under control, (4) he carelessly and negligently failed to stop his car and to avoid a collision with the defendant's but, and (5) he carelessly and negligently failed to keep a proper lookout.

As a part of its cross action for damages to its bus the defendant by reference reasserted the charges of negligence on the part of plaintiff set forth in the answer. None of these charges of negligence against the plaintiff were submitted by the instructions for consideration by the jury.

As grounds for reversal the defendant has presented numerous assignments of error. A considerable number of them fall logically into groups and do not require separate consideration. At the close of plaintiff's evidence and again at the conclusion of all of the evidence the defendant moved for a directed verdict and, as pointed out, after verdict it moved for judgment notwithstanding the verdict and for a new trial. A group of six (Nos. 1, 2, 3, 4, 5, and 6) challenges the sufficiency of the evidence to support or sustain the submission of the case to a jury and to sustain the verdict and judgment.

In an action where the evidence produced by the plaintiff is not sufficient to support a verdict in his favor it is the duty of the trial court to direct a verdict for the defendant. Reynolds v. Burlington & M. R. R. Co., 11 Neb. 186, 7 N.W. 737; Lee v. Hildebrand, 119 Neb. 717, 230 N.W. 673; Redwelski v. Omaha & C. B. St. Ry. Co., 137 Neb. 681, 290 N.W. 904; Hansen v. Village of Ralston, 145 Neb. 838, 18 N.W.2d 213.

Where however there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him. Husenetter v. Little, 78 Neb. 220, 110 N.W. 541; Oswald v. Equitable Life Assurance Society, 128 Neb. 173, 258 N.W. 41; Gorman v. Bratka, 139 Neb. 84, 296 N.W. 456; Komma v. Kreifels, 144 Neb. 745, 14 N.W.2d 591; Herman v. Firestine, 146 Neb. 730, 21 N.W.2d 444; Rueger v. Hawks, 150 Neb. 834, 36 N.W.2d 236.

If a motion for a directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render the judgment pursuant to the motion for directed verdict. Section 25-1315.02, R.R.S.1943.

The determination upon this group of assignments of error in the respect mentioned is to be made in the light of these three legal propositions.

Evidence of the plaintiff is to the effect that at the time in question he was traveling eastward in the south or outer lane at the rate of about 25 miles an hour; that his lights were burning; that automobiles were parked at the curb just west of Forty-first Avenue; that when he was about 30 feet west of Forty-first Avenue plaintiff observed the bus emerging into Cuming Street from the south; that he first saw it when it was about two feet into Cuming Street; that the bus did not stop but kept on going forward until after the collision; that when he saw the bus he set his brakes but was not able to stop without striking the bus; and that the collision of his automobile with the bus was near the middle thereof. The evidence as to speed of the bus is that it was traveling at from one to five miles an hour. There was no evidence of rain or snow but it appears that the pavement was wet or damp. There is evidence on the part of plaintiff that at the time the driver was talking to another bus operator who was a passenger on the bus.

On behalf of the defendant the bus operator testified that he stopped at the stop sign on the south side of Cuming Street, looked west, and saw the lights of an automobile, which later proved to be the automobile of plaintiff, coming from the west a block or a...