Jacobsen v. Poland, 34049

• Decision Date: 25 January 1957
• Docket Number: No. 34049,34049
• Citation: 80 N.W.2d 891,163 Neb. 590
• Parties: Elmer JACOBSEN, Appellee, v. Vivian POLAND, Appellant.
• Court: Nebraska Supreme Court

Page 891

80 N.W.2d 891

163 Neb. 590

Elmer JACOBSEN, Appellee, v. Vivian POLAND, Appellant.

No. 34049.

Supreme Court of Nebraska.

Jan. 25, 1957.

Syllabus by the Court

1. It is for the jury to determine controverted issues of fact in a law action if the evidence is in dispute.

2. Diminution of earning capacity is not, of necessity, measured by its diminution in the particular calling in which plaintiff was engaged at the time of the injury, or by the amount of wages which he was then receiving; hence, plaintiff may show that he was capable of earning more than he was earning at the time of the injury, and the jury may consider what plaintiff might have been able to earn but for the injury in any employment for which he was fitted.

3. If there has been permanent impairment of earning capacity, for the purpose of deciding the amount of damages to be awarded, evidence as to earnings of the plaintiff for a reasonable period before the injury may be received and considered.

4. There is no definitive rule for determination in all cases what is a reasonable period in this regard but this must be decided upon consideration of the circumstances of each case.

5. Whether or not evidence of this character is too remote in time to be admissible is generally for the trial court to determine in the exercise of a sound discretion.

6. This class of evidence is competent not as furnishing an arbitrary measure of damages but as assistance in enabling the jury to exercise a sound and just discretion in deciding the proper amount to be awarded for the impairment or loss of earning capacity.

7. In an action for personal injury plaintiff may recover all the damages proximately caused by the tort under a general allegation of the gross amount of the damages caused, including damages for impairment of his capacity to earn money.

8. Evidence of the prevailing rate of discount for the period involved is proper in a case requiring the jury to determine the present value of money payable in the future but interest rates and other forms of returns on money safely invested are matters of such common knowledge that jurors will be presumed to be able to make proper allowance therefor in estimating the present value of a sum of money payable in the future though no evidence on that subject is introduced.

9. The future pain and suffering which a jury is entitled to consider in the assessment of damages are such as the evidence shows with reasonable certainty will be experienced by the injured person.

John E. Dougherty, York, Thomas W. Lanigan, Grand Island, for appellant.

Miles N. Lee, Tedd C. Huston, Broken Bow, for appellee.

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

BOSLAUGH, Justice.

Appellee demands damage from appellant on account of injuries he suffered because of a collision of an automobile operated by appellant and an automobile in which appellee was a guest as a result, as appellee alleges, of the negligence of appellant.

The substance of the cause of action of appellee is that on November 8, 1953, he was riding as a guest in an automobile traveling in a lawful manner towards the south on a public highway at the crest of a hill about 2 1/2 miles south of Gates Store in Custer County; that appellant was operating his automobile towards the north on the highway at that time and place in a negligent manner on the left or west side of the center of the highway directly towards the automobile in which appellee was traveling in its proper right or west lane of travel; that the driver of the automobile in which appellee was riding as he came to the crest of the hill obtained a view of the automobile of appellant when it was a short distance from and was moving directly towards the car in which appellee was riding and the driver thereof in an effort to avoid a collision turned the automobile sharply and abruptly to the left on the east part of the highway and appellant drove his automobile toward the east side of the road and thereby caused a head-on collision between the automobiles; that the negligence of appellant which proximately caused injuries to appellee was that he operated his automobile on the wrong side of the highway, that he failed to have a proper lookout for other vehicles traveling on the highway, and that he failed to have reasonable control of his automobile preceding and at the time of the collision; and that serious injuries were inflicted on appellee as a consequence whereof he is permanently and totally disabled.

Appellant denies the version of the accident alleged by appellee except appellant admits the collision at the time and place as stated and pleads that the collision of the automobiles was caused by the driver of the one in which appellee was riding operating it at a speed of 65 to 70 miles per hour on the east side of the highway directly in front of and against the automobile of appellant as he was lawfully proceeding toward the north up the hill to its crest; and that any injuries suffered or damages sustained by appellee as a result of the collision were caused by the negligence of the driver of the automobile in which appellee was riding which cooperated and concurred with negligent acts and omissions of appellee which were more than slight. Appellant specified numerous acts of negligence of the driver of the car in which appellee was riding and many separate acts of negligence of appellee. They are not further mentioned because they were resolved by the jury adversely to appellant and consequently they are unimportant if the verdict is a legal one.

Appellee traversed the affirmative statements made in the pleading of appellant.

Appellee prevailed in the district court. The judgment in his favor and the denial of the motion for a new trial are the occasion of and the subject of this appeal.

Appellee was on November 8, 1953, traveling from Gates Store where he lived in Custer County with the intention of going to Broken Bow to attend the wedding of his son. He was a guest in an automobile owned and operated by his son-in-law, Richard Embree, which will be designated the Embree car. Appellee occupied the left side of the rear seat. His wife was to his right, a granddaughter to her right, and a son of appellee was also in the rear part of the car. The driver of the automobile and his wife occupied the front seat. They started from Gates Store about 1 o'clock p. m. and proceeded south on a graveled highway. The part of the road that was surfaced was about 24 feet wide. It was affected by melting snow and its condition varied from dry to wet and muddy. There was quite a large hill, the crest or summit of which was about 2 1/2 miles south of the Gates Store. It was identified as Myers Hill. It was about 1/8 of a mile from the bottom of it to the top on both the north and on the south. The road was quite badly eroded at the north bottom of the hill where water had collected and a considerable mudhole had resulted. The area of the mudhole was irregular, bumpy, and had ruts through it. The speed of the car was reduced and the car was put in second or intermediate gear. The speed of the car through the mudhole was 15 to 20 miles per hour. The highway on the north side of the hill was wet and muddy because of melting snow. The automobile was continued in second or intermediate gear while it proceeded up the north side of the hill until it was near the summit and immediately before the automobile of appellant came into view of the driver of the Embree car and its occupants. The Embree car as it proceeded up the hill and until immediately before the accident, the subject of this case, was operated on the west or right-hand portion of the highway with the west side of the car 3 or 4 feet from the west edge of the shoulder.

When the Embree car approached the summit of the hill its driver, Richard Embree, saw an automobile traveling directly towards him on the west side of the highway a distance to the south of 100 to 150 feet at a speed of 35 miles per hour. It was a Chrysler car operated by appellant. It was proceeding north with its west side within 30 or 4 feet of the west shoulder of the highway. The speed of the Embree car was then about the same as the speed of the Chrysler car. The first thing Embree saw as his automobile was coming up to the crest of the hill was the ornament on the front of the hood of the Chrysler car driven by appellant. The space between the two automobiles was rapidly closing. Embree immediately turned his car to the right when he realized there was a drop of 3 or 4 feet to his right, there was a ditch there, a lot of snow to his right, and several feet west of that was a bank where the grader had cut through the hill. The automobile of appellant had not changed its course or decreased its speed. Embree then realized he could not escape to the right and he suddenly turned to the left in an attempt to avoid a collision of the automobiles. The only open and unoccupied part of the highway was to the east. At the precise time Embree moved his car towards the east the appellant turned and operated his car to his right or to the east and drove it into and against the Embree car about the middle or slightly east of the middle of the highway. The time between when the automobile of appellant came into view of Embree and when it collided with the Embree car was only 2 or 3 seconds. The Embree car was far enough to the east that if the automobile of appellant had continued directly north there would have been no contact of the vehicles.

The Chrysler automobile struck the Embree car with great force. The front of it was greatly damaged. The doors on the left side were forced open, and the steering assembly was broken and shoved against the windshield. The occupants were thrown against and about the car and all of them were injured, some more seriously than others. The wife of Embree was forced against and through the...