Hickman v. Parks Const. Co.

• Decision Date: 20 April 1956
• Docket Number: No. 33890,33890
• Citation: 62 A.L.R.2d 1040,162 Neb. 461,76 N.W.2d 403
• Parties: , 62 A.L.R.2d 1040 Leon A. M. HICKMAN, Appellee, v. PARKS CONSTRUCTION COMPANY, a corporation, Appellant.
• Court: Nebraska Supreme Court

Page 403

76 N.W.2d 403

162 Neb. 461, 62 A.L.R.2d 1040

Leon A. M. HICKMAN, Appellee, v. PARKS CONSTRUCTION COMPANY, a corporation, Appellant.

No. 33890.

Supreme Court of Nebraska.

April 20, 1956.

Syllabus by the Court

1. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

2. 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.

3. In an action based on negligence to which the comparative ngeligence rule has application wherein the evidence shows beyond reasonable dispute that the plaintiff's negligence was more than slight in comparison with that of the defendant the action should be dismissed or a verdict directed.

4. The general rule which governs where a party is responsible for a dangerous place, agency, instrumentality, or operation likely to cause injury or damage to persons or property rightfully in its proximity is that he is charged with the duty of taking suitable precautions to avoid injury or damage to such persons or property, and his failure to take such precautions is negligence.

5. A contractor making an excavation on property of another is under a duty to provide such protection as would guard persons rightfully on the property against any contingency reasonably to be anticipated.

6. A contractor making an excavation on property of another is not relieved of his duty to provide such protection as would guard persons rightfully on the property against contingencies reasonably to be anticipated by reliance upon others to take the necessary precautions.

7. If there is any evidence which will sustain a finding for a litigant having the burden of proof the trial court may not disregard it and decide the case as a matter of law.

8. The following are elements of application of the comparative negligence rule: If it appears that a defendant has been guilty of gross negligence and a plaintiff has been guilty of slight negligence by comparison with that of the defendant the plaintiff may recover. If a defendant has been guilty of gross negligence and a plaintiff has been guilty of negligence more than slight by comparison with that of the defendant the plaintiff may not recover. If a defendant has been guilty of negligence but which is less than gross and the plaintiff has been guilty of negligence in any degree the plaintiff may not recover.

9. The question of the existence of negligence or contributory negligence is for a jury where different minds may reasonably draw different conclusions from the evidence as to the existence of negligence or contributory negligence.

10. Likewise ordinarily the comparison of negligence is for the jury.

11. If, however, on a comparison the evidence shows beyond reasonable dispute that a plaintiff's negligence was more than slight it is the duty of the court to determine the question as a matter of law in favor of the defendant.

12. Where the master and servant relation does not exist, the rule is that one who voluntarily assumes the risk of injury from a known danger is barred from a recovery in a negligence case. The rule has no application in the case of exposure to unknown and hidden danger.

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

Brown, Crossman, West, Barton & Quinlan, John R. Barton, Omaha, for appellee.

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

YEAGER, Justice.

This is an action at law by Leon A. M. Hickman, plaintiff and appellee, against Parks Construction Company, a corporation, defendant and appellant, to recover damages for personal injuries and medical expenses, occasioned by alleged negligence on the part of the defendant.

The case was tried to a jury. A verdict was returned in favor of the plaintiff and against the defendant for $18,500. Judgment was rendered on the verdict. The defendant filed an alternative motion for judgment notwithstanding the verdict or for a new trial. This motion was overruled. From the judgment and the order overruling the alternative motion the defendant has appealed. By the appeal a reversal of the judgment is sought.

The brief of appellant contains 14 assignments of error as grounds for reversal. Only six however have been argued. These alone will be given consideration herein.

The assignments of error in substance are: (1) That the court erred in overruling the motion of the defendant to direct a verdict in favor of the defendant or in the alternative to dismiss plaintiff's action with prejudice; (2) that the court erred in overruling the defendant's motion after verdict and judgment for a judgment notwithstanding the verdict in favor of the defendant; (3) that the court erred in overruling the defendant's motion for a new trial; (4) that the court erred, if the case required submission at all, in refusing to submit the defense of assumption of risk; (5) that the court erred in refusing to give instruction No. 13 requested by the defendant; and (6) that the court erred in giving instruction No. 6 upon its own motion.

A determination of the questions presented requires an examination of the factual situation as disclosed by the record, the contentions of plaintiff by his pleadings, and the pleaded defense or defenses to these contentions of the plaintiff.

On June 1, 1952, prior thereto, and since, the United States has maintained an Air Force Base in Sarpy County, Nebraska, known as Offutt Air Force Base. On the base is a building or joined buildings. Hereinafter the arrangement will be referred to as one building or structure. The building has two separated wings which extend north and south. The separation is of about 69 feet. The two wings are joined at the north end by what is referred to as the north wing. The west wing extends southward about 70 feet. The east wing extends southward at least 120 feet and possibly farther. In the east wing, at all times of concern here an Air Force Officers Club was housed and maintained. In the west wall of the east wing and about 11 feet from where that wing is joined by the north wing of the building is a door from the outside area into the club. This was referred to as the door to the foyer of the club. About 33 feet farther south is another door referred to as the lounge door. About 37 feet south of this door is another referred to as the Bear Pit door. About 20 feet farther south is another door referred to as the kitchen door. About 20 feet farther south is still another door referred to as the service entrance. This west wall appears to be on a practically straight or even line from the north to the south for a distance of about 95 feet. Farther south it is uneven.

Immediately prior to May 27, 1952, the area bounded on three sides by the building and a line running westward from a point not exactly determinable but somewhere in the vicinity of the Bear Pit door was not devoted to any particular use. Precisely to what use it had been put before has not been described. It appears however to have been sort of a patio. South of this line and some short distance west of the east wing are facilities for the disposal of garbage from the Officers Club and for the cleaning of large utensils. In this area are some trees. South of this is a parking lot to take care of automobiles of people coming to the club. The width of the parking area from east to west appears to be as much as the distance between the two wings of the building.

Some time prior to May 27, 1952, the Officers Club entered into a contract with the defendant to improve the area bounded generally on the west by the west wing, on the north by the north wing, on the east by that portion of the east wing starting at the north wing and extending to about 5 feet south of the Bear Pit door, and on the south from the point mentioned south of the Bear Pit door on a curved line to the northwest for a distance of about 20 feet, the direct distance between the ends of the curve being 17.8 feet, thence directly west about 45 feet. The contract was for the construction of a patio within the area and a wall on the line from the point south of the Bear Pit door across the south boundary of the area.

The construction of the wall required the digging or excavating of a ditch or trench the length of this south boundary line the purpose of which was to contain the footing and a base for the wall. Accordingly, starting on May 27, 1952, the necessary excavating was done. The excavation started at the wall south of the Bear Pit door and extended westward. The excavation was about 4 feet wide and about 4 1/2 feet deep. In the excavation were placed forms for the pouring of a concrete base for the wall 8 inches thick with a footing of about 1 foot 8 inches. The concrete was poured and the forms removed. The portion of the excavation to the north of the concrete base was backfilled so that the area north from the concrete was relatively even or level. The portion to the south was not backfilled completely if at all. This condition obtained on June 1, 1952.

On the night of June 1, 1952, which was Sunday, a party was held at the Officers Club. From about 5:30 p. m. on that date the plaintiff was in general supervisory charge of the operations of the club. This was a function which was divided by shifts among three officers, the other two being senior to plaintiff. Among his functions was that of checking the cash...