Hersh v. Miller

• Decision Date: 24 December 1959
• Docket Number: No. 34716,34716
• Citation: 169 Neb. 517,99 N.W.2d 878
• Parties: William HERSH, Appellant, v. Mildred K. MILLER, Appellee.
• Court: Nebraska Supreme Court

Page 878

99 N.W.2d 878

169 Neb. 517

William HERSH, Appellant, v. Mildred K. MILLER, Appellee.

No. 34716.

Supreme Court of Nebraska.

Dec. 24, 1959.

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

2. The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence occur.

3. Such a violation is evidence of negligence which the jury is entitled to consider upon the question whether actionable negligence exists.

4. Negligence consisting in whole or in part of the violation of statutes or ordinances, like other negligence, is without legal consequence unless it is a contributing cause of the injury for which recovery is sought.

5. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the accident could not have happened.

6. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his act; and where some new efficient cause intervenes, not set in motion by him, and not connected with but independent of his acts and not flowing therefrom, and not reasonable in the nature of things to be contemplated or foreseen by him, and produces the injury, it is the dominant cause.

7. An efficient, intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury.

8. The causal connection is broken if between the defendant's negligent act and the plaintiff's injury there has intervened the negligence of a third person who had full control of the situation and whose negligence was such as the defendant was not bound to anticipate and could not be said to have contemplated, which later negligence resulted directly in the injury to the plaintiff.

Martin A. Cannon, Matthews, Kelley & Stone, Omaha, for appellant.

Gross, Welch, Vinardi & Kauffman, Omaha, for appellee.

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

WENKE, Justice.

This action was commenced in the district court for Douglas County by William M. Hersh against Mildred K. Miller. Defendant's demurrer to plaintiff's second amended petition was sustained by the trial court. Plaintiff elected to stand on his second amended petition, whereupon the case was dismissed. Plaintiff then filed a motion for new trial and has taken this appeal from the overruling thereof.

The question presented by this appeal is, does appellant's second amended petition state a cause of action against the appellee? Insofar as here material, the appellant, in his second amended petition, alleges:

'That plaintiff is and was on April 25, 1958 the owner of a 1953 Utility Semi-Trailer and a 1953 Diamond T. Tractor, which on April 25, 1958 was being driven east on U. S. Highway #6, also called the West Dodge Road, in Douglas County, Nebraska. * * * That on said date at about 1:00 P.M. defendant was in charge of a certain 1957 Chevrolet automobile, and left said automobile unlocked and unguarded in a public place in the City of Omaha near 5718 Military Avenue. One Donald Pecoraro, a minor then 12 years of age, got into said automobile, started it and drove it away, and shortly thereafter drove it south on 156th Street, into the intersection of 156th & Dodge Road and drove it into and against the side of plaintiff's truck in the intersection of 156th and West Dodge Road. As a result plaintiff's trailer was severely damaged and was disabled for the period of time necessary for repairs. * * * That on said date there was in force an Ordinance of the City of Omaha, entitled 'Traffic Code', Chapter 55 of the Omaha Municipal Code, which includes Article 7, 'Operation of Vehicles', and in said article 7 contains Section 30 which reads as follows: 55-7.30, UNLOCKED, UNATTENDED MOTOR VEHICLE. It shall be unlawful for any person to leave any motor vehicle standing on the streets or thoroughfares or other public places in the City of Omaha, without first having securely locked said vehicle, or without leaving some person in charge thereof: Provided, however, this Section shall not apply to delivery trucks or trucks of any other character whatsoever. * * * That said damage was directly and proximately caused by the negligence of the defendant in leaving the said automobile standing in a public place in the City of Omaha without first having securely locked it, and without leaving some person in charge thereof, contrary to the ordinances of said City, and when she knew or should have known that to do so would endanger persons in the class to which plaintiff belonged and the property of such persons.'

'A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.' Babin v. County of Madison, 161 Neb. 536, 73 N.W.2d 807, 809.

It will be observed that appellant contends the appellee's violation of the ordinance was negligence and the proximate cause of the accident and damages flowing therefrom.

While the purpose of the ordinance is primarily for the protection of car owners themselves and as an aid in proper law enforcement against theft and pilferage, however, to a limited extent, it is also a safety measure intended to protect the users of the public streets and highways at large, of whom appellant was one. See, Hanley v. Fireproof Building Co., 107 Neb. 544, 186 N.W. 534, 24 A.L.R. 382; Fimple v. Archer Ballroom Co., 150 Neb. 681, 35 N.W.2d 680. As stated in Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767, 101 N.W. 995, 997, 68 L.R.A. 425: '* * * in some cases their purpose is both for the welfare of the public at large, and also for the protection of the personal and property rights of individuals. In such case the individual may adduce the failure to perform the duty enjoined as evidence of negligence.'

'The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur. * * * Such a...