Hofrichter v. Kiewit-Condon-Cunningham
| Decision Date | 10 May 1946 |
| Docket Number | 32002. |
| Citation | 22 N.W.2d 703,147 Neb. 224 |
| Parties | HOFRICHTER v. KIEWIT-CONDON-CUNNINGHAM et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where an occupant of a motor vehicle is engaged in a common or joint enterprise with the driver and has an equal right to direct and control the operation of the vehicle, the contributory negligence of the driver is imputable to the occupant. This is so although one takes no actual control while the other is driving.
2. The negligence of the driver of an automobile for hire is not attributable to a passenger having no control over the driver further than to indicate the route to be followed or the place to which the car is to be driven.
3. The refusal of the trial court to instruct the jury on the defendants' theory of joint enterprise is not error, if the evidence failed to establish such a relation.
4. The custom of giving additional instructions is employed, as a usual thing, after the jury have deliberated for some time and are unable to agree, and it is not necessary for the court to await a formal request from the jury. It has been the general rule that any instruction which would have been proper in the first charge to the jury may be given as a supplemental instruction to a jury deliberating on a verdict.
5. The court may re-read the former instructions in connection with the supplemental instructions, or may simply give the additional instructions. The jury should be brought before the court in a body, and such additional instructions should be given with the same formality with which the original instructions were given.
6. In a civil case, it is not error to allow a jury to separate for a rest period after having deliberated all night, and then to resume consideration of the case. The length of time in which jurors are to be kept together, before they are finally discharged as unable to agree on a verdict, rests largely in the discretion of the trial court, who may consider the importance of the case, the expense of a retrial, and the possibility of the jury reaching a verdict.
7. A verdict for $11,000 will not be set aside as excessive when the plaintiff, a woman 33 years of age and earning $200 a month, was injured in an automobile collision and suffered several fractures of her pelvis, a twisting or separation of the coccyx, a fractured collar-bone, a displacement of the left sacroiliac joint, and because of the tipping of the pelvic bone and a lateral curvature of the lower spine the left leg will be over an inch shorter than the right leg resulting in permanent partial disability.
Blackledge & Conway, of Hastings, and Lloyd W Kelly, of Grand Island, for appellants.
B J. Cunningham, of Grand Island, for appellee.
Wm H. Wright and Fraser, Connally, Crofoot & Wenstrand, all of Omaha, amici curiae.
Heard before SIMMONS, C. J., and PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
Plaintiff brought action for personal injuries suffered by her in an automobile-truck collision, which occurred on a Platte River bridge south of Grand Island. The verdict and judgment was for $11,000, from which defendants appeal.
There is evidence in the record tending to establish the following facts: The plaintiff, Helen O. Hofrichter, was 33 years of age at the time of the accident, which occurred on the afternoon of December 9, 1943. She and her husband, Harold E. Hofrichter, were employed at the United States Naval Ammunition Depot at Hastings, where she was earning $200 a month. Earl Stoeger, a married man, 48 years of age, worked at the same place, and the three had for some time been riding from Grand Island to Hastings with Harold E. Jensen, who was the owner of a 1941 Tudor Ford sedan, and each of the three parties in the back seat paid the owner of the Ford 50 cents for each round trip. The three riders in the back seat had to go to a street intersection across from the post office in Grand Island, where the Jensens picked them up daily a little after four o'clock in the afternoon. It had been snowing slightly on the day of the accident and the road was damp from the melted snow.
The accident occurred about 4:30 p. m., about six miles south of Grand Island on Highway No. 281, on a Platte River bridge of six spans, approximately 500 feet in length. The traveled portion of this bridge was 17 feet one inch wide. Mrs. Jensen drove the Ford onto the bridge at about ten miles an hour, and had gone onto the north end of the bridge for some distance before Glenn R. Keller, 42 years of age, who was the driver for the defendants, drove up around a slight curve onto the south end of the bridge in a large tractor-truck, the tractor weighing three tons, which had attached to it an eight-wheel chassis trailer, weighing 3 1/2 tons, on which there was a large crane, or high loader, equipped with a bucket for hoisting material, which equipment weighed 6 1/2 tons, the combined weight being over 13 tons, and the length of this outfit being 32 to 35 feet, and the width 90 inches.
The plaintiff's husband testified that Keller was driving his truck over the white center line of the bridge at an excessive rate of speed, so the Ford did not have room to pass, and had practically stopped at the time of the accident. At a point about 140 to 150 feet from the south end of the bridge, a collision occurred, and the Ford was knocked or pushed backward toward the north about 50 feet. Witness Stoeger testified that the truck straddled the center line of the bridge and was traveling 35 miles an hour, and said: 'He knocked us back the first time he hit and then hit us again and then the third time turned us around and turned us west and drove us into the railing.' The effect was to whirl the Ford around at right angles to the bridge, so it came to rest with its front end jammed into the west side of the bridge; the front seat and three of the occupants, including plaintiff, were thrown out the door, and the rear end of the Ford was wedged into the side of the trailer, which forced the tractor-trailer firmly against the east side of the bridge, where they were locked together and blocked all traffic for about seven hours.
The defendants, on the other hand, maintained that Keller was driving his truck on the proper side of the road, and that the Ford, coming from the north, skidded into the front of the truck, and that Mrs. Jensen had lost control of the Ford because of a slightly frozen or slippery condition of the roadbed; that when the truck came to rest it was as far to the right as it could be driven, and had rubbed against the side of the bridge for the last ten feet.
As a result of the accident, Mrs. Jensen, the driver of the Ford, was killed in the collision, and her husband was injured in the accident but died several months later from other injuries. It is alleged that the plaintiff, who was riding between her husband and Earl Stoeger on the back seat, was rendered unconscious by the accident and suffered several fractures of the pelvis, a twisting or separation of the coccyx, a fractured collarbone, a displacement of the left sacroiliac joint, with a tipping of the pelvic bone, and a lateral curvature of the lower spine which makes the left leg over an inch shorter than the right, resulting in permanent partial disability. She remained in a hospital for a period of two months.
A jury returned a verdict against all defendants, and in their motion for a new trial defendants set out 38 errors. This motion was submitted to the court on May 19, 1945, and overruled, and judgment was entered for plaintiff and against all defendants.
The defendants set out a number of assignments of error, and charge that the court erred in giving instructions Nos. 3 and 4 and supplemental instructions Nos. 1 and 2.
It is also charged that the court erred in not discharging the jury from further deliberation when they announced, after 14 hours of deliberation, that they could not reach a verdict, and also erred in permitting them to separate for eight hours and then continue their deliberations.
The defendants charge that the trial court erred in failing to submit to the jury that the plaintiff was engaged in a joint enterprise at the time of the accident, and should have instructed the jury on the rule of negligence with reference to a joint enterprise.
It is charged that the verdict of the jury was grossly excessive, and finally, that the verdict of the jury is not substantiated by the physical facts of the accident.
In supporting these assignments of error, the defendants set out seven propositions of law, with numerous citations in support thereof. The argument in support of the objection to instruction No. 3 is that it fails to state the general defense of the defendants, which was that the defendants were guilty of no negligence and are not responsible for damages, and that if the defendants were without negligence there could be no recovery, and requiring the defendants to prove that Gladys Jensen was entirely and solely responsible for the accident.
By instruction No. 2 the court gave a synopsis of the petition and its averments in a manner to which no objection is made and gave a fair synopsis of the separate answers of the defendants, in which it is stated that the defendants admit that an accident occurred at the time and place stated, admit that Glenn Keller was driving the truck involved in the accident, admit that the plaintiff received some injuries, and deny each and every other allegation of plaintiff's petition. 'For further answer the defendants * * * allege that the plaintiff was a passenger in an automobile operated by one Gladys Jensen and that the collision and the resulting injuries to the plaintiff was the sole proximate result of the...
To continue reading
Request your trial