Johnsen v. Taylor

• Decision Date: 20 November 1959
• Docket Number: No. 34583,34583
• Citation: 169 Neb. 280,99 N.W.2d 254
• Parties: Burdette S. JOHNSEN, Appellant, v. Harry A. TAYLOR, Appellee.
• Court: Nebraska Supreme Court

Page 254

99 N.W.2d 254

169 Neb. 280

Burdette S. JOHNSEN, Appellant, v. Harry A. TAYLOR, Appellee.

No. 34583.

Supreme Court of Nebraska.

Nov. 20, 1959.

Syllabus by the Court

1. The burden is on plaintiff in an action of the character of this case to show by the weight of the evidence, the truth of one or more of the acts of negligence charged against the defendant, and that it or they are the proximate cause of an injury and damage to plaintiff and the extent thereof.

2. Damage which is uncertain, conjectural, or speculative as to the existence, nature, or proximate cause thereof is not the basis of a recovery.

3. Damage for permanent injury may not be based upon speculation, probability, or uncertainty but it must be shown by competent evidence that such damage is reasonably certain as a proximate result of the pleaded injury.

4. A person to whom another has tortiously caused harm is entitled to compensatory damages therefor if he establishes by proof the extent of such harm and the amount of his damage with reasonable certainty.

5. The element of time alone is not sufficient to establish causal connection between an accident and an alleged injury sustained thereby.

6. It is the duty of a district court to direct a verdict in a case if there is no conflict in the evidence or if the evidence, though conflicting is so conclusive that it is insufficient to sustain a verdict.

Nate C. Holman, Chambers, Holland, Dudgeon & Hastings, Lincoln, for appellant.

Cline, Williams, Wright & Johnson, Lincoln, for appellee.

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

BOSLAUGH, Justice.

Appellant seeks damages for an injury which he claims he sustained by the collision of an automobile owned and operated by him and an automobile owned and operated by appellee, the proximate cause of which he asserts was the negligence of appellee.

The occurrence which caused this litigation was described by appellant at the trial in this manner: He was traveling west on the outside or north lane of O Street between Eleventh and Tenth Streets in Lincoln in his automobile, a 1951 Imperial Chrysler, about 11 o'clock in the forenoon of April 3, 1956, at a speed of from 20 to 25 miles per hour. Appellee was operating his automobile at that time and place, traveling west in the lane immediately north of the center line of O Street about 18 or 24 feet ahead of and to the left of appellant. The automobiles were traveling at about the same speed and when they had reached about the center of the block appellee turned his automobile to the right into and across the north lane in front of appellant. Appellant applied the brakes of his automobile when he saw appellee turn to the north but appellant could not stop and he said he had to hit the automobile of appellee. Appellee was headed north and west about halfway into a parking stall on the north side of O Street at the time the automobiles made contact. Appellant did not get out of his automobile at the place of the collision but he estimated he slid his wheels 6 or 8 feet. The left part of the front bumper of the automobile of appellant struck the right rear corner or end of the bumper of the automobile of appellee. The bumpers did not completely meet and the one on the automobile of appellant went over the bumper on the automobile of appellee and reached its right rear fender. Appellant was forced up over the steering wheel of his automobile. He was shaken and the front of him was 'punched,' he said. He then thought he had sustained no injury. Appellee got out of his automobile, looked at its rear, asked appellant if he was all right, and appellant said he was. Appellant backed up his automobile to let appellee back from the parking into the north lane and proceed to the west on O Street which he did to Tenth Street. The glass in one of appellant's directional lights was cracked, the fender and bumper were marred, and the horn on his automobile did not sound after the collision. Appellant remained in his automobile at the scene of the collision and he drove it from there to Ninth Street and to the Annex Garage.

A motorist who was traveling west on the inside lane of O Street at about the time and place of the accident involved in this case testified that appellant at that time was traveling in the outside lane of the street. The witness saw a car preceding him turn from the inside lane to the right into and across the outside lane and into a parking spot. He did not clearly see what was going on but he heard a screeching noise and saw dust in the air which he believed was from under automobile fenders caused by an abrupt stop. The witness did not stop but while he was proceeding west he saw the automobile of the motorist who had turned to the right and the automobile of appellant come together. He said he did not know anyone was injured; the collision did not look that serious to him.

Appellee, a physician in Lincoln for more than 40 years, while a witness related in substance the following concerning the accident: He was in the outside lane going west on O Street on which there were diagonal parking stalls. He turned his automobile to the right immediately east of the alley in the block north of O Street and between Tenth and Eleventh Streets. The rear lights of his automobile were operating, warning that he was decreasing his speed and was going to stop. He gave no signal for a right-hand turn. He applied the brakes to retard the speed of his automobile and immediately he felt a slight impact on his rear bumper. The participants in the collision examined the automobiles for possible damage. They found none. Appellant stated that he was not injured and he gave no indications of injury. He walked toward and to appellee after the collision and following their conversation he walked naturally away from where they had been standing. Appellee said the impact of the automobiles was very slight. It did not jar or affect him in any way and there was no damage to his automobile.

Appellant testified that when he stepped out of his automobile at the Annex Garage, where he drove after the collision, he about collapsed. However, he walked from there to his place of business, a distance of three-fourths of a block, where he remained for an undisclosed period of time. He told his employees he was hurt. He did not claim that he made a more definite statement on that subject. He then went to the police station, made a report of the collision, and thereafter went to his home. He considered the collision a minor accident with no injuries involved until he was in the Annex Garage and alighted from his automobile. When he was asked what made him think he had been injured he said it was pain in his lower back and right leg in the same area in which he had suffered pain as early as the year 1954. He first said he also had a movement of his head 'back and forth like such (indicating)' after he got to his place of business and sat down there but this was not true in the Annex Garage. Later he said he noticed the described movement of his head at the garage. The pain and the movement of his head which he described were the only things he experienced which caused him to believe he had been injured in the collision of the automobiles. In a deposition of appellant taken a considerable period before the trial of the case he testified that he told appellee at the scene of the accident that he, appellant, thought he was badly hurt. He also testified that the only unusual thing that appellant experienced when he was in the Annex Garage and got on his feet was that he developed a terrific pain in his stomach which continued for several days. When appellant reached his home on the day of the accident he went to bed and remained there until the following morning. The pain in the lower back area was more severe and in the afternoon of that day he consulted Dr. J. E. M. Thomson at his office. He examined appellant and gave him medical management, tablets for discomfort, and a local anesthetic injection into his back, and applied strapping to his back.

Appellant had been afflicted with a low back pain from somewhere in the winter months of 1953 and 1954. It came on gradually, became more severe, and by February 1956, the pain had extended to and radiated into his right leg. The lower back pain reached such severity that appellant developed numbness in the leg. He had the experience of attempting to get out of bed in the morning and being unable to stand. Appellant consulted Dr. Ferciot, an orthopedist of Lincoln and a senior consulting orthopedist at the Veterans Administration Hospitals in Lincoln and Grand Island, on March 1 and March 4, 1954, concerning soreness and stiffness in his lower back and soreness in his legs. On March 1, 1954, X-rays were made and the examination of appellant was completed on March 4, 1954. The diagnosis was a weakness of the lumbosacral part of his back with what is known as spondylothesis, which is an incomplete fusion of one of the side processes of the fifth lumbar vertebra. Both processes in this instance were a pecunlarity formation in which the pedicle had failed to unite to the vertebral body. The doctor testified that it was an accepted conclusion that spondylothesis is either a peculiarity of congenital origin or results from something that happens very early in life.

The doctor next saw appellant professionally February 6, 1956. He was then complaining of persistent low backache with considerable discomfort on his right side. He complained bitterly that his condition was bothering him and interfering with his ability to perform his work. An examination was had of appellant with the aid of X-ray rechecks then made which were compared with the films made in 1954. There was very slight change in position except that there was evidence of first degree spondylolisthesis with some early shift of the bony structures and chronic...