Hausse v. Kimmey, S-93-319

• Decision Date: 09 December 1994
• Docket Number: No. S-93-319,S-93-319
• Citation: 247 Neb. 23,524 N.W.2d 567
• Parties: Les M. HAUSSE and Holly L. Hausse, Appellees, v. Kristopher T. KIMMEY, a Minor, et al., Appellees, and John C. Hoagland, Appellant.
• Court: Nebraska Supreme Court

Page 567

524 N.W.2d 567

247 Neb. 23

Les M. HAUSSE and Holly L. Hausse, Appellees, v. Kristopher T. KIMMEY, a Minor, et al., Appellees, and John C. Hoagland, Appellant.

No. S-93-319.

Supreme Court of Nebraska.

Dec. 9, 1994.

Syllabus by the Court

1. Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the trial court's ruling.

2. Trial: Directed Verdict. A failure to move for a directed verdict at the close of all the evidence procedurally bars consideration of a motion for judgment notwithstanding the verdict.

3. Negligence. The comparative negligence statute does not contemplate translating negligence into a mathematical ratio and such a rule would not further the administration of justice.

Richard L. Walentine and Eric L. Klanderud, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.

Dwight E. Steiner, of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellees Kimmey et al.

HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

HASTINGS, Chief Justice.

John C. Hoagland appeals from the district court's denial of his motion for judgment notwithstanding the verdict and for a new trial. Hoagland sought a new trial on his cross-claim against his codefendants Kristopher T. Kimmey, a minor, and Kimmey's parents, Edward D. and Barbara S. Kimmey, in a negligence action initiated by Les M. and Holly L. Hausse.

When reviewing a question of law, an appellate court reaches a conclusion independent of the trial court's rulings. Stack v. Sobczak, 243 Neb. 78, 497 N.W.2d 374 (1993).

Hoagland assigns as error that the district court (1) failed to sustain his posttrial motions; (2) failed to hold Hoagland's negligence only slight, as a matter of law, in accordance with the jury's special finding that he was 15 percent negligent; (3) failed to grant Hoagland's motion for judgment notwithstanding the verdict when the record indicates that Hoagland was guilty of only slight negligence and Kimmeys' negligence was gross in comparison; (4) failed to enter judgment in accordance with the special finding as mandated by Neb.Rev.Stat. § 25-1120 (Reissue 1989); and (5) failed to grant Hoagland's motion for a new trial when the general verdicts and special finding were inconsistent and a product of jury misconduct.

This appeal arises from an action filed by the Hausses against Kristopher Kimmey, a minor; Edward and Barbara Kimmey, Kristopher's parents; and Hoagland. The Hausses alleged that on December 24, 1990, Kristopher Kimmey lost control of his vehicle while making a turn at Cedardale and 60th Street in Sarpy County, and went off the road and through a fence. The damage to the fence allowed two horses, owned by the Hausses, to escape from the enclosed field. One of the horses was found and returned. Another horse, Ship Bar Doolin, wandered onto nearby Highway 370. Hoagland, while driving his vehicle on Highway 370, struck Ship Bar Doolin. The collision killed the horse.

The Hausses alleged that Kristopher Kimmey acted negligently in failing to keep his vehicle under reasonable control, operating his vehicle at an excessive speed, failing to repair the damaged fence in order to keep the horses contained in the field, and failing to provide timely notice to the owner of the property. The Hausses alleged that Kristopher Kimmey's parents shared responsibility because he operated the vehicle with their knowledge, consent, and permission. The Hausses also alleged that Hoagland was negligent in failing to keep his vehicle under reasonable control, failing to keep proper lookout, and operating his vehicle at an excessive speed. The Hausses sought $6,000 in general and special damages.

Hoagland filed a counterclaim against the Hausses. Hoagland alleged that the Hausses acted negligently in failing to exercise reasonable care in confining their horses, failing to maintain the fence in proper condition, failing to prevent their horses from being unattended on a highway, failing to round up and confine their horses, and failing to warn that their horses were loose and unattended. Hoagland sought dismissal of the petition and $4,864.63 in damages for the physical injuries to himself and the damage to his vehicle caused by the collision with Ship Bar Doolin.

Hoagland also filed a cross-claim against the Kimmeys. Hoagland alleged imputed negligence of Kristopher Kimmey to his parents. In the cross-claim, Hoagland alleged that the Kimmeys acted negligently in failing to keep the vehicle under reasonable control, operating the vehicle at an excessive speed, striking and penetrating a fence while knowing that the horses contained therein might escape and wander, failing to take proper measures to repair the fence while knowing that the fence served to contain the horses, failing to provide timely notice to the Hausses and authorities, and leaving the scene of the accident before notifying authorities. Hoagland sought $4,864.63 for damages sustained from the collision with Ship Bar Doolin.

After the Hausses rested their case, the Kimmeys and Hoagland both moved for directed verdicts against the Hausses. The court denied both motions. After the close of all evidence, the Hausses moved for a directed verdict against Hoagland's counterclaim. The Kimmeys also moved for a directed verdict against Hoagland's cross-claim. The court granted the Hausses' motion for a directed verdict as to Hoagland's counterclaim, but denied the Kimmeys' motion as to Hoagland's cross-claim.

The jury returned a general verdict in favor of the Hausses for $3,000 against both the Kimmeys and Hoagland. The jury also returned a verdict in favor of the Kimmeys and against Hoagland on his cross-claim.

The court then, with the record being silent as to any request, assent, or reason, read the jury a special instruction. The special instruction stated:

You have found both defendants to be negligent. You have one more task to perform and that is to decide what percentage of negligence each defendants' negligence bears to the entire negligence.

Please determine, by completing the Special Finding form, their respective percent of the negligence that caused the damages to the plaintiffs, remembering that the total must equal 100%.

The jury returned a special finding that the Kimmeys' negligence represented 85 percent of the...