Harris v. Pullen

• Decision Date: 20 November 1959
• Docket Number: No. 34631,34631
• Citation: 99 N.W.2d 238,169 Neb. 298
• Parties: James HARRIS, Appellant, v. Robert PULLEN, Appellee.
• Court: Nebraska Supreme Court

Page 238

99 N.W.2d 238

169 Neb. 298

James HARRIS, Appellant, v. Robert PULLEN, Appellee.

No. 34631.

Supreme Court of Nebraska.

Nov. 20, 1959.

Syllabus by the Court

1. In a case where the defendant pleads that the plaintiff was guilty contributory negligence the burden is on him to prove that defense by a preponderance of the evidence.

2. If the evidence adduced by the plaintiff tends to prove the defense of contributory negligence the defendant is entitled to receive the benefit thereof and it is the duty of the court to so instruct the jury.

3. Where different minds may reasonably draw different conclusions 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.

4. A motion for a directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

5. The function of this court, in determining whether or not a verdict has been sustained or whether or not there is evidence sufficient for submission to a jury, is not to weigh evidence, but to ascertain whether or not there is evidence to sustain the verdict of a jury in the exercise of its function as the trier of the facts.

6. It is the duty of the driver of a motor vehicle to have his vehicle under such reasonable control as will enable him to avoid a collision with other vehicles, assuming that the drivers thereof will exercise due care.

7. The driver of a motor vehicle has the duty to keep a proper lookout and watch where he is driving even though he is rightfully on the highway and has the right-of-way or is driving on the side of the highway where he has a lawful right to be.

8. A motion for judgment notwithstanding the verdict may not properly be sustained in the absence of a motion for a directed verdict which motion should have been sustained because of a want of evidence.

Philip T. Morgan, Fullerton, for appellant.

Luebs & Elson, Grand Island, Howard E. Tracy, Grand Island, for appellee.

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

YEAGER, Justice.

This is an action for damages for personal injuries, doctor and hospital bills, and property damage by James Harris, plaintiff and appellant, against Robert Pullen, defendant and appellee. The case was tried to a jury which returned a verdict in favor of the defendant and against the plaintiff. Judgment was rendered on the verdict. Thereafter the plaintiff filed a motion for judgment notwithstanding the verdict and in the alternative a motion for new trial. Both elements of the motion were overruled. From the judgment, the order overruling the motion for judgment notwithstanding the verdict, and the order overruling the motion for new trial the plaintiff has appealed.

The factual background of the action, about which there is no substantial dispute is that early in the morning while it was still dark on September 29, 1958, the plaintiff left his home in Fullerton, Nebraska, and proceeded southward on State Highway No. 14, a black-top road. At about 5:30 a. m. on that day after he crossed the county line into Merrick County, Nebraska, the front end of his automobile came into collision with the rear end of a truck owned by, and at the time used in the business of, the defendant and operated by Marvin Rogers, an employee of the defendant, in a southerly direction on State Highway No. 14. There is some evidentiary dispute about time but that is of no real importance. It is not disputed that the happenings involved occurred before daybreak.

It is the contention of the plaintiff that the collision came about as the result of the negligence of Rogers which negligence was attributable to the defendant. No contention is made that the defendant is not liable if Rogers was negligent. It is the further contention of the plaintiff that as results of the collision he was injured; he became obligated for doctor and hospital bills; and his automobile was damaged, by reason of all of which he suffered damages.

The plaintiff, to the extent necessary to state here, charged that the negligence of Rogers was as follows: That the truck was being operated on the highway at night without lights; that Rogers failed to maintain a proper lookout; that he failed to yield the right-of-way; that he failed to yield one-half of the highway to the plaintiff; that he failed to signal his intention to turn left across the highway; and that he failed to exercise ordinary and reasonable care in the operation of the truck on the highway, and particularly in the light of his knowledge of the truck's equipment.

The defendant by answer denied that Rogers was guilty of any negligence, and charged affirmatively that any injury or damage suffered or sustained by plaintiff was the result of his own negligence. The charges of negligence against the plaintiff, which require mention, summarized are: That he operated his automobile at a high, dangerous, and unlawful rate of speed; that he failed to yield the right-of-way; that he failed under the circumstances to have his automobile under proper control; that in overtaking the truck he failed to pass to the left; that he failed to give a signal by use of his horn of his intention to pass; that he failed to apply his brakes; that he failed to have his automobile under such control as to be able to stop within the range of his vision; that he failed to swerve so as to avoid a collision; and that he failed to keep a proper lookout.

The case was submitted to the jury by instructions which outlined the issue of negligence tendered by the plaintiff, the denial of the defendant, and his affirmative defense which in essence is the defense of contributory negligence, which defense, if supported by sufficient evidence, required the court to instruct on the rules relating to the doctrine, which apply in this jurisdiction, controlling the comparison of negligence or comparative negligence.

As grounds for reversal the brief of appellant contains numerous assignments of error. The following is a substantial embodiment of the first five and the last three of these assignments: The trial court erred in refusing to direct a verdict in favor of the plaintiff and against the defendant on the question of liability in consequence of which it was error to submit the question of contributory negligence of the plaintiff and the rules relative to the comparison of negligence to the jury. The theory of this is that there is no evidence from which a jury could find that the plaintiff was guilty of negligence which caused or proximately contributed to the collision and that Rogers was guilty of negligence which was the sole proximate cause. This requires an examination of the entire evidence bearing on that question.

It is pointed out here that this determination must depend upon the testimony of both parties bearing on the subject. In other words, as applied to this case, if a jury could properly have found from the evidence of the plaintiff, or of the defendant, or both of them, that the plaintiff was guilty of negligence causing or proximately contributing to the collision the decision herein must be against him on the stated embodiment of assigned errors.

A controlling rule is the following: 'If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect.' Mundy v. Davis, 154 Neb. 423, 48 N.W.2d 394, 396. See, also, Krepcik v. Interstate Transit Lines, 154 Neb. 671, 48 N.W.2d 839; Murray v. Pearson Appliance Store, 155 Neb. 860, 54 N.W.2d 250; Price v. King, 161 Neb. 123, 72 N.W.2d 603.

Another controlling rule is the following: 'Where different minds may reasonably draw different conclusions 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.' Price v. King, supra [161 Neb. 123, 72 N.W.2d 604]. See, also, Becks v. Schuster, 154 Neb. 360, 48 N.W.2d 67; Young v. Stoetzel, 159 Neb. 624, 68 N.W.2d 186; Granger v. Byrne, 160 Neb. 10, 69 N.W.2d 293; Larsen v. Omaha Transit Co., 165 Neb. 530, 86 N.W.2d 564.

The record discloses that the plaintiff was the only eyewitness to the actual collision. Rogers was the driver of the truck and was possessed of some first hand information but his view of the collision was cut off by the body of the truck. On direct examination the plaintiff testified substantially that about 4:30 a. m. he left home in a 1947 Chevrolet automobile, which he had purchased about 2 weeks before for $35, and drove south on the highway, which was black-top; that the highway was straight and unobstructed; that he was proceeding at 40 to 45 miles an hour when he came over a hill; that he came upon the truck, hit his brakes, slowed up, and proceeded to pass; that when he got about even with the tailgate of the truck, the truck started cutting left across the white line down the center of the road; that the truck came clear over the white line; that he hit his brakes and came back to the right side as did also the truck, and the collision took place; that the truck had no lights and was dirty; that he had his own headlights, which were good, on bright; that his brakes were good and his horn was good; that he had the truck in view at all times as he approached and attempted to pass; that the driver of...