Johnson v. Schrepf, 32952

• Decision Date: 11 May 1951
• Docket Number: No. 32952,32952
• Parties: JOHNSON v. SCHREPF et al.
• Court: Nebraska Supreme Court

Page 853

47 N.W.2d 853

154 Neb. 317

JOHNSON v. SCHREPF et al.

No. 32952.

Supreme Court of Nebraska.

May 11, 1951.

Syllabus by the Court.

1. When the defendant in a personal injury action moves for a directed verdict, such motion will be treated as an admission of the truth of all material and relevant evidence favorable to the plaintiff and of all reasonable inferences to be drawn therefrom, and if it tends to support plaintiff's cause of action, the motion should be overruled and the case submitted to the jury.

2. Where there is no evidence to support the defense of contributory negligence it should not be submitted to the jury, and to do so under such circumstances would constitute prejudicial error.

3. The lawfulness of the speed of a motor vehicle, within the maximum limits fixed by law, is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

4. Where the driver of a motor vehicle upon a public highway, in attempting to pass another vehicle from the rear, operates his vehicle in such a manner as to strike the other vehicle in passing, he is ordinarily guilty of negligence when the driver of the vehicle being passed is without fault.

5. In an action for damages, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the sound discreption of the jury, and the courts are reluctant to interfere with a verdict so rendered.

6. A verdict may be set aside as excessive only where it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or that it is clear that the jury disregarded the evidence or controlling rules of law.

7. A court will not ordinarily hold a verdict to be excessive when the amount fixed by the jury is sustainable by factors of pain, suffering, mutilation, disability, wage losses, medical costs, or other pecuniary losses, including those resulting from existing economic conditions such as the low purchasing power of money.

Davis, Stubbs & Healey, Lincoln, Betty Peterson Sharp, Nebraska City, for appellant.

Tyler & Frerichs, Nebraska City, Van Pelt, Marti & O'Gara, Lincoln, for appellee.

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

CARTER, Justice.

This is a personal injury action growing out of an accident between two trucks on a public highway. The jury returned a verdict for the plaintiff in the amount of $16,594.85, and the defendants appeal.

The accident took place on a county road about four and one-half miles south and one mile east of Syracuse, Nebraska, on a detour marked as State Highway No. 50, on June 29, 1948, at approximately 4:15 p. m. The highway was graveled. Visibility was good. The traveled portion of the highway was about 18 feet in width at the places material to this case. There was a windrow of gravel along the west side of the highway about 2 1/2 feet wide at the base and 1 1/2 feet high. The road at the scene of the accident sloped downward toward a culvert at the foot of the hill. The incline was not great and it does not appear of importance in the case.

The plaintiff was an employee of the Eastern Nebraska Public Power District at the time of the accident. He was riding in a truck belonging to the district, which was being operated by Lawrence Walters, his foreman. Another employee, Vincent Maillard, sat to the right of the driver and plaintiff was sitting on the right of Maillard, next to the door on the right-hand side of the cab. The three men had completed some work for the district at Lewiston, Nebraska, and were proceeding to their homes in Syracuse.

The district's truck had a platform which was 9 feet 10 inches long and 6 feet 10 inches wide. This platform was equipped with a bolster which pivoted on a heavy pin, set vertically in the platform equidistant from the sides and somewhat back of its center. It was special equipment used in transporting poles. Before leaving Lewiston the three men loaded two timbers on the platform which were described as five by fives and were 10 feet 4 inches in length. The two timbers were wired together at each end, one above the other. They were placed in front of the bolster and wired to it. They were then placed in a diagonal position from the right front to the left rear corners of the platform and wired to the platform on each end. The only other equipment on the platform were some truck chains and log chains on the chain rack at the front of the platform, and some shovels. The evidence shows that the timbers did not extend beyond the rear edge of the platform over an inch, if at all.

It appears that after leaving Lewiston with the truck they came to a bridge located about two miles south of the point of the accident. They stopped before crossing the bridge to permit a combine to cross. While waiting, plaintiff got out of the truck and examined the two timbers and found them to be wired tightly to the bolster and platform. The truck owned by the defendant Schrepf and driven by the defendant Masters came up behind them and stopped, and followed the district's truck across the bridge after the combine had cleared it. The defendant Masters testifies that he saw plaintiff make the examination of the timbers. He says also that the timbers did not extend beyond the platform at this point.

The evidence is that after crossing the bridge the district's truck proceeded on its way north at a speed of 40 to 45 miles an hour. At the place of the accident the driver of the Schrepf truck undertook to pass the district's truck. The district's truck was on the right-hand side of the highway and was proceeding straight down the road. When the front of the Schrepf truck came alongside the cab door of the district's truck there was a dull thud and the district's truck veered to the right and, after traveling some distance out of control, turned completely over and back up on its wheels. Defendant Masters also describes the noise of contact and the pulling of his truck towards the district truck. He says he pulled his steering wheel to the left and that his truck then appeared to unhook from the other truck. After going by he observed the district truck in the ditch. He went back and assisted the three occupants of the district truck.

The Schrepf truck was a comparatively new truck. The defendant Masters was an employee of the defendant Schrepf and was using the truck in his employer's business at the time of the accident. The defendant Masters testifies that the district truck was traveling on its right-hand side of the highway at a speed of approximately 45 miles an hour immediately prior to the accident. He did not observe any timbers extending beyond the platform of the truck when he started to pass. There are marks, indentations, and scraped places on the back of the cab and front of the truck body of the Schrepf truck. When the district's truck came to rest after the accident the two timbers were not attached to the truck platform. One was found broken in two near the truck and the other was found in the ditch nearby. There were some red paint marks on the unbroken timber which resemble the red color of the Schrepf truck. It is claimed by plaintiff that the lower right front corner of the Schrepf truck body struck the district's truck. It is argued by defendants, largely from the circumstances shown, that one or both of the timbers came in contact with the Schrepf truck between the cab and body and caused the accident.

There is no evidence in the record that the timbers came loose before the accident. Plaintiff and Walters testify that they looked back at their load on several occasions and that it was wired tightly in place at all times. Defendant Masters says that he saw nothing extending beyond the truck bed as he started to pass. The only evidence pointing in that direction is the evidence of the red paint marks on the unbroken timber. There is evidence of damage to the back of the cab and the front of the truck box on defendants' truck. The right front corner of the truck body of the Schrepf truck appears to have been struck a solid blow, a blow sufficient to split the end of the heavy baseboard of the truck box. All the persons involved testify to a contact between the two trucks. Whether the...