Kahrhoff v. Kohl

• Decision Date: 19 April 1985
• Docket Number: No. 84-080,84-080
• Citation: 366 N.W.2d 128,219 Neb. 742
• Parties: Jean Ann KAHRHOFF, Appellee, v. Veda KOHL, Appellant.
• Court: Nebraska Supreme Court

Page 128

366 N.W.2d 128

219 Neb. 742

Jean Ann KAHRHOFF, Appellee, v. Veda KOHL, Appellant.

No. 84-080.

Supreme Court of Nebraska.

April 19, 1985.

Syllabus by the Court

1. Pleadings: Motor Vehicles: Negligence. Allegations that a motorist involved in an accident failed to apply brakes or turn aside are nothing more than descriptions of the manner in which he or she is alleged to have failed to keep the vehicle driven under reasonable control.

2. Negligence. Negligence is never presumed; the burden of proving negligence is on the party who alleges it and is not proved by the mere happening of an accident.

3. Motor Vehicles: Negligence. A motorist owes the duty to see what is in plain sight and to drive in such a manner that he or she is able to stop or turn aside in time to avoid a collision with an object within his or her range of vision.

4. Motor Vehicles: Negligence. Whether a motorist who experiences a previously unmanifested mechanical failure is negligent in controlling the vehicle driven depends upon the opportunity to use other mechanical equipment at his or her disposal.

5. Motions to Dismiss: Directed Verdict. The party against whom a motion for dismissal or direction of liability is made is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence; if there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law.

Jeffrey H. Jacobsen of Jacobsen, Orr & Nelson, P.C., Kearney, for appellant.

John A. Wolf of Cronin, Shamberg & Wolf, Grand Island, for appellee.

BOSLAUGH, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

In this negligence action the automobile which defendant-appellant, Veda Kohl, was driving inexplicably accelerated and crashed into a building. As a result, the plaintiff-appellee, Jean Ann Kahrhoff, an occupant of the building, was struck and injured. Kohl assigns as errors the sustainment of Kahrhoff's motion made at the close of all the evidence for a directed verdict on the issue of liability, and the denials of Kohl's motions for a directed verdict of dismissal made both at the close of Kahrhoff's evidence and at the close of all the evidence. We reverse and remand for a new trial.

In her petition Kahrhoff alleged that Kohl was negligent in that she failed (1) to have the automobile under control, (2) to keep a proper lookout, (3) to apply her brakes in order to avoid striking Kahrhoff, and (4) to turn aside in order to avoid striking Kahrhoff. Allegations (3) and (4) are nothing more than descriptions of the manner in which Kohl is alleged to have failed to keep the vehicle she was driving under reasonable control. See, Greyhound Corp. v. Lyman-Richey Sand & Gravel Corp., 161 Neb. 152, 72 N.W.2d 669 (1955); Fick v. Herman, 159 Neb. 758, 68 N.W.2d 622 (1955). Therefore, Kahrhoff's operative allegations are that Kohl was negligent in failing to keep reasonable control of the vehicle she was operating and in failing to keep a proper lookout. Kohl filed an answer denying any negligence.

Kohl was the only trial witness called to prove her alleged negligence. In response to Kahrhoff's questions on direct examination, Kohl testified that as she came upon the building, a beauty shop she intended to patronize, she prepared to park. While traveling at 5 to 10 miles per hour, she took her foot off the accelerator and applied the brakes. Although the brakes worked, the engine nonetheless raced and the automobile accelerated, the accelerator pedal having activated itself. The brakes were inspected following the accident and found to be in proper working order; however, the accelerator was not inspected. She had experienced no prior difficulty with the operation of the accelerator and has experienced none since the accident. In response to one of Kahrhoff's questions, Kohl testified that her mechanic said "there was a possibility sometimes that there was a little cog missing and it would stick and it might only happen once and--and might never happen, again, and it might."

We begin our legal analysis by reviewing some basic principles relating to automobile negligence cases. The first of these is that negligence is never presumed, that the burden of proving negligence is on the party who alleges it and is not proved by the mere happening of an accident. Macfie v. Kaminski, 219 Neb. 524, 364 N.W.2d 31 (1985); Burrows v. Jacobsen, 209 Neb. 778, 311 N.W.2d 880 (1981); Porter v. Black, 205 Neb. 699, 289 N.W.2d 760 (1980). A motorist owes the duty to see what is in plain sight, McKenzie v. Ladd Trucking Co., 214 Neb. 209, 333 N.W.2d 402 (1983), and to drive in such a manner that he or she is able to stop or turn aside in time to avoid a collision with an object within his or her range of vision, C.C. Natvig's Sons, Inc. v. Summers, 198 Neb. 741, 255 N.W.2d 272 (1977).

It is well to also remind ourselves that the party against whom a motion for dismissal or direction of liability is made is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence; if there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law. Whitaker v. Burlington Northern, Inc., 218 Neb. 90, 352 N.W.2d 589 (1984); Teegerstrom v. H.J. Jeffries Truck Line, 216 Neb. 917, 346 N.W.2d 411 (1984); Schutz v. Hunt, 212 Neb. 228, 322 N.W.2d 414 (1982).

There is no evidence whatsoever that Kohl did not see the building into which she crashed. In fact, the only evidence is that she knew she had reached her destination and was preparing to park. Therefore, Kahrhoff did not prove Kohl failed to "keep a proper lookout." If that were all she had alleged, the trial court would have been obligated, in response to Kohl's motion, to dismiss Kahrhoff's petition at the close of her evidence. Anderson v. Farm Bureau Ins. Co., 219 Neb. 1, 360 N.W.2d 488 (1985). However, Kahrhoff also alleged that Kohl had failed to have the automobile she was driving under control, meaning under reasonable control.

In Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482 (1959), the plaintiff stopped his automobile at a stop sign and then started to drive across the street. He was unable, for some unknown cause, to shift from low gear to second and was losing speed, so he put the vehicle into low gear. These activities consumed time so that the plaintiff was struck by the defendant, who had been operating his truck on the favored street. We held there was no showing that plaintiff had reason to expect the mechanical difficulty he experienced, and the trial court therefore erred in submitting to the jury the issue of plaintiff's failure to control his vehicle.

Unlike Bezdek, wherein there was no action the plaintiff could have taken under the circumstances to avoid the defendant's truck, here, there was a question of fact as to whether Kohl...