Holtz v. Plumer

• Decision Date: 11 February 1938
• Docket Number: 30181
• Citation: 277 N.W. 589,133 Neb. 878
• Parties: CARL HOLTZ, APPELLANT, v. PAULINE PLUMER, APPELLEE
• Court: Nebraska Supreme Court

277 N.W. 589

133 Neb. 878

CARL HOLTZ, APPELLANT, v. PAULINE PLUMER, APPELLEE

No. 30181

Supreme Court of Nebraska

February 11, 1938

APPEAL from the district court for Phelps county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Instructions to a jury must be considered as a whole, and if, when so considered, they properly state the applicable law, it is sufficient.

2. Rulings of the trial court as to instructions given and as to instructions refused held to be without prejudicial error.

3. Rulings of the trial court on admission and rejection of testimony examined, analyzed, and held to be free from prejudicial error.

Appeal from District Court, Phelps County; Blackledge, Judge.

Action by Carl Holtz against Pauline Plumer for the death of the plaintiff's daughter when struck by defendant's automobile. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Leon & White, Frank A. Anderson and A. W. Storms, for appellant.

Wilber S. Aten and Stephens, Thornell & Millhone, contra.

Heard before GOSS, C. J., EBERLY, DAY, PAINE and CARTER, JJ., and YEAGER, District Judge.

OPINION

GOSS, C. J.

Plaintiff appeals from a judgment for defendant based on a verdict of the jury.

The action was by a father to recover damages on account of the death of his five-year old daughter, alleged to have been struck by defendant's car while operated by her (1) at a reckless rate of speed and in excess of 50 miles an hour; (2) at a rate of speed greater than was reasonable having due regard for the traffic and conditions of the road, and in violation of the laws of Iowa and the speed and traffic ordinances of Council Bluffs (both of which were specifically set out); (3) that defendant did not have her car under proper control, and failed to turn it immediately before the collision, to avoid the same, which defendant knew or in the exercise of reasonable care should have known and could have done; (4) that defendant did not keep a proper lookout ahead for the purpose of observing the condition of the highway in reference to individuals thereon; (5) and that defendant, in the exercise of ordinary care, could have seen the position of the child in the street before the collision, so as to have avoided the collision, but negligently failed to do so. This constitutes a fair summary of the allegations of the amended petition as to the acts of negligence. They were stated by the court in the first paragraph of the court's instructions.

Plaintiff claims the district court erred in instruction No. 3, which set out what plaintiff must prove in order to recover: (1) That defendant operated the automobile so as to strike the child; (2) "that said defendant upon that occasion was negligent in the driving and operation of her automobile in the particulars claimed by plaintiff and stated to you in instruction No. 1, or some of them, and by such negligence caused the injuries which resulted in the death of the child;" and (3) that plaintiff has suffered damage. Plaintiff argues that, in subdivision 2 above, where the court said "some of them" he should have said "some one of them," and that the expression as used by the court led the jury to believe that it was necessary for plaintiff to prove more than one of the acts of negligence before he could recover. Defendant argues that if the judge had used the words "some one of them" the jury would understand it to preclude them from finding negligence in two particulars charged.

Webster's New International Dictionary Unabridged (2d ed.) gives the word "any" as a synonym for "some." From the subject-matter and context that appears to be the sense in which the court used it. It evidently was intended by the court to mean the same as "one or more" of the acts of negligence charged in the petition and set out in the instructions. When the jury were instructed that it was necessary, before a verdict could be reached, for plaintiff to prove that defendant was negligent "in the particulars claimed by plaintiff * * * or some of them," we think it would be understood by the jury to means that, if they found her negligent in all or in one of the particulars, then plaintiff should be given a verdict. We are of the opinion this instruction did not mislead the jury.

Plaintiff complains of instruction No. 4 given by the court. In that instruction the court recited the Iowa statutes as to the right of a father to recover resulting damages on account of the injury of a child, the Iowa statute as to speed and the Council Bluffs ordinance as to speed, and stated to the jury that a violation was not conclusive evidence of negligence, but should be considered, in connection with other facts and circumstances proved at the trial, in determining whether defendant was negligent upon the occasion in question. Plaintiff requested eight instructions, but none of them referred to this particular subject. While the instruction might have been amplified as to the effect of failure to observe the statutes and ordinance, it was not in the circumstances prejudicial to the plaintiff, and, in the absence of a more particular request from plaintiff, must be approved.

Instruction No. 6 is characterized by plaintiff as erroneous in part. The instruction stated that, if the child was exposed to injury and defendant saw her position or by the exercise of reasonable care could have seen her danger and failed to use reasonable and ordinary care under the circumstances to prevent colliding with the child, then plaintiff may recover. That phase of the instruction plaintiff approves. Then the instruction says: "The defendant contends that she was keeping a lookout and did not see the child or have opportunity to see her before the injury. If you find this to be true, then defendant would not have been negligent in that particular, and if the collision and consequent injury to the child was not to any extent caused or brought about by any negligence or want of ordinary care of the defendant, then the defendant would not be liable in this case."

It is a well-known rule that instructions must be considered as a whole, and if, when so considered, they properly state the applicable law, it is sufficient. Vithen v. Jensen, 128 Neb. 188, 258 N.W. 267; Reinhardt v. Menssen, 132 Neb. 207, 271 N.W. 442. Where, as here, the criticized instruction itself shows that the proposition criticized is covered within its confines, the rule is tested and exemplified within narrow limits. The instruction itself, considered as a whole, answers the criticism.

Certain instructions were requested by plaintiff and refused. As to some of these error is claimed. In all of them the record shows that they were marked by the trial court "Refused as sufficiently covered by instructions given." Without going into a detailed discussion of these instructions, we find the court's description of the situation to be correct and that the instructions given by the court were not prejudicially erroneous.

Plaintiff asserts that...