Hiner v. Nelson, 35239
| Decision Date | 01 February 1963 |
| Docket Number | No. 35239,35239 |
| Citation | 119 N.W.2d 288,174 Neb. 725 |
| Parties | Esther HINER, Appellant, v. Jerry NELSON, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Instructions to a jury should be considered as a whole and if they fairly submit the case that is all the law requires.
2. The meaning of an instruction, not the phraseology, is the important consideration, and a claim of prejudice will not be sustained when the meaning of an instruction is reasonably clear.
3. Where the meaning of an instruction is clear and a correct statement of the law, error cannot be predicated on the selection of words.
Ross & O'Connor, Thomas F. Carl, Omaha, for appellant.
Fraser, Stryker, Marshall & Veach, Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This action was brought by the plaintiff and appellant Esther Hiner against the defendant and appellee Jerry Nelson, in the district court for Douglas County, Nebraska. Its object was to recover damages for personal injuries sustained by plaintiff, a pedestrian, as she was struck by an automobile driven by the defendant in Omaha, Nebraska.
Trial to a jury resulted in a verdict and judgment for defendant. On the plaintiff's motion for new trial being overruled, she has brought the cause to this court on appeal.
The trial court submitted to the jury the issue of the defendant's negligence and the plaintiff's contributory negligence. The plaintiff assigns no error in submitting the issue of contributory negligence, but does assign error in the instructions by which it was submitted.
The plaintiff assigns error in the giving of instructions Nos. 4, 5, and 13 by the court on its own motion; that the court erred generally in failing to instruct the jury with respect to the plaintiff's theory of the case; that its instructions mentioned gave undue prominence to defendant's contention of contributory negligence and were confusing and misleading to the jury; and that it failed to define the phrase 'preponderance of the evidence.'
After stating that the dispute was concerning a collision between the automobile operated by defendant in a southerly direction on Twenty-seventh Street and plaintiff walking in a westerly direction across Twenty-seventh Street in or south of the crosswalk located on the south side of Leavenworth Street, the court gave its instructions Nos. 3 and 4, which must be considered together that instruction No. 4 be understood. They are set out as follows:
Contention A in instruction No. 3 includes in the alternative the four specifications of negligence set out therein. The two instructions make it clear that the jury need only find one or more of the several items of negligence mentioned in contention A to be so proved. Instruction No. 4 refers to contention A as a whole and not to the four specifications set out therein. Thereafter if the jury found under contention C that any such negligence was the proximate cause of the plaintiff's injury or 'harm,' as it was termed therein, and that such 'harm' to the plaintiff was established, as set out in contention E, its verdict should be for the plaintiff unless it also should find that the plaintiff was negligent as stated in contention B and that such negligence was a proximate cause of her injury or 'harm' as set out in contention D. In considering each of these contentions the jury was told it must find them proved by a preponderance of the evidence.
We think these two instructions properly set out what the jury must find to entitle recovery by the plaintiff. It further provided that if all these contentions A, C, and E were not so proved it should find for the defendant. It further provided that if the jury found the defendant was negligent resulting in harm to the plaintiff which was established but further found the plaintiff was negligent which was a proximate cause of her injuries also, it should compare such negligence of the parties, as provided in instruction No. 13, which reads as follows:
'If you find that all contentions of instruction No. 3 have been proved by a preponderance of evidence, you will then proceed to compare the negligence of the parties as stated in Contentions A, B, C, and D of instruction No. 3. Upon such comparison you may find the degrees of negligence to be as indicated on one of the horizontal lines in the chart in this instruction, and your verdict will then be the verdict stated on the horizontal line expressing your finding.
"CHART
" 'MS' means 'more than slight'
" 'LG' means 'less than gross'
Degree of Plaintiff's Degree of Defendant's
Negligence Negligence Verdict for
---------------------------------------------------------
Slight Gross Plaintiff
Slight LG Defendant
MS Gross Defendant
Ms LG Defendant
'If you find for plaintiff you will deduct from the whole amount of harm experienced by her such proportion thereof as her negligence bears to the entire negligence in the case as shown by the evidence and return a verdict for the balance only.'
By this instruction No. 13 the jury is again told to compare the negligence of the parties. It is then given the table above set out with the instruction that 'MS' means 'more than slight' and 'LG' means 'less than gross' and the table sets out for whom its verdict should be after comparing the negligence of the parties in accordance...
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