Keiserman v. Lydon

• Decision Date: 03 November 1950
• Docket Number: No. 32787,32787
• Parties: KEISERMAN v. LYDON et al.
• Court: Nebraska Supreme Court

Page 513

44 N.W.2d 513

153 Neb. 279

KEISERMAN v. LYDON et al.

No. 32787.

Supreme Court of Nebraska.

Nov. 3, 1950.

Syllabus by the Court.

1. A new trial may be granted only for a legal cause and where it appears that a legal right has been prejudicially invaded or denied.

2. Where a litigant has sustained the burden of a trial, and secured the verdict of a jury on the facts in issue, he is entitled to retain the benefit of the verdict if the proceedings are free from prejudicial error.

3. It is not error for the trial court to refuse to instruct that defendant was guilty of negligence as a matter of law where the evidence is in conflict as to the proximate cause of the injury.

4. An instruction concerning the credibility of witnesses that 'you have no right to reject the testimony of any of the witnesses without good reason, and you should not do so until you find it irreconcilable with other testimony which you may find to be true' is erroneous.

5. Whether the giving of such an instruction in a civil case constitutes prejudicial error is dependent upon the situation existing in each particular case. If the instruction under the facts shown is prejudicial to the rights of a party to a fair trial it is reversible error, but otherwise not.

Hollman & McCarthy, V. H. Halligan, all of North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellee.

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

CARTER, Justice.

This is an appeal from an order of the district court for Lincoln County setting aside a verdict of the jury in favor of the defendant and granting the plaintiff a new trial.

The procedure to be followed in a case such as we have before us is controlled by our decision in Greenberg v. Fireman's Fund Insurance Co., 150 Neb. 695, 35 N.W.2d 772, 778, wherein we said: 'If, as in the instant case, the trial court gave no reasons for its decision, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. Under these circumstances the appellant is not required to establish a negative. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.' The parties have complied with the procedure therein announced. The plaintiff urges that the trial court properly awarded a new trial to the plaintiff because the trial court erred (1) in failing to instruct the jury that the defendant was guilty of negligence as a matter of law in running into the rear of the car in which plaintiff was riding, and (2) in giving instruction No. 11.

A review of the facts is necessary to a proper determination of the questions thus raised. The record discloses that on March 13, 1948, about 12:30 p. m., Leslie G. Tanner was driving a light truck, with a two-wheel house trailer attached, east on U. S. Highway No. 30 about four miles west of Sutherland, Nebraska. Under the belief that he had a low tire he pulled over to the south edge of the pavement and stopped with the right wheels on the very edge of the pavement. Behind Tanner's truck and trailer was an automobile driven by Naomi Spurgin, which was driven within 30 or 40 feet of the trailer immediately prior to the accident. Following the Spurgin car was one driven by Lawrence Keiserman. Leah Keiserman, plaintiff and wife of Lawrence Keiserman, was riding in the front seat of this car. Following the Keiserman car came another car owned and driven by the defendant Edwin M. Lydon. Mary Ellen Lydon, defendant's sister, occupied the front seat with him, and Walter Carl, a neighbor, was riding in the rear seat.

The evidence of the plaintiff is that she was riding with her husband, Lawrence Keiserman, immediately before the accident. As the Keiserman car approached the scene of the accident is was following the Spurgin car at a safe and reasonable distance and at a safe rate of speed. As the Keiserman and Spurgin cars were thus proceeding, the Tanner truck and trailer stopped in the east-bound lane of traffic. An approaching automobile prevented the Keiserman and Spurgin cars from passing the Tanner vehicles. As the Spurgin car slowed down, plaintiff's evidence is that the Keiserman car was slowed down by the application of its brakes, which was indicated by the flashing of the brake lights on the rear of the car. It is the contention of plaintiff that the defendant was driving his automobile in an easterly direction behind the Keiserman car at a reckless and excessive rate of speed and ran into the rear of the Keiserman car, causing the injuries to plaintiff of which complaint is made. The evidence of plaintiff and her husband is to the effect that their car had been stopped or almost stopped three to ten feet behind the Spurgin car when they were struck from the rear by defendant's car. Both testify that the Keiserman car did not strike the Spurgin car before the former was struck by defendant's car.

Defendant was driving in an easterly direction and came up behind the Keiserman car. He states that he was driving 50 or 55 miles an hour just before the accident. When he saw the other cars slowing down ahead of him he turned to the left to pass, but seeing that the north lane was occupied he returned to the right lane. At that time he applied his brakes and threw his sister into the windshield. He thereupon released the brakes temporarily and then applied them again. In a few seconds he bumped into the back of the Keiserman car. A tire mark was made on the pavement for a distance of 94 feet by defendant's car. Defendant testifies that the Keiserman car stopped or slowed down very suddenly. He did not know whether his car struck the Keiserman car before or after the Keiserman car struck the Spurgin car. The witness Carl, the occupant of the back seat of defendant's car, says that the Keiserman car struck the Spurgin car before defendant hit the Keiserman car.

The medical testimony shows that plaintiff suffered a compression fracture of the twelfth dorsal vertebra. There is evidence also of a small ossicle between the fifth and sixth cervical vertebrae. Plaintiff's medical experts testify that these injuries could be sustained by the force resulting only from the striking of the Keiserman car from the rear. The medical experts called by the defendant state that the injuries could have resulted from the striking of the Keiserman car by the defendant, the striking of the Spurgin car by the Keiserman car, or from being thrown against another part of the car wherever the force may have been applied.

It is the contention of the plaintiff under the facts here shown that defendant was guilty of such negligence in driving his car into that of Keiserman that the trial court should have instructed the jury to return a verdict for the plaintiff, leaving to the jury only the question of the amount of damages to be awarded. We cannot agree with the plaintiff. It is true that defendant saw the three cars ahead of him. He was obliged to see that which was in plain sight. The cars ahead of him were moving east as he came up behind them. There is some evidence that the Keiserman car stopped suddenly and unexpectedly. There is evidence, very conflicting, as to the sequence of two collisions between the Spurgin, Keiserman, and Lydon cars. There is a difference of opinion among the experts as to whether the first or second collision was the proximate cause of plaintiff's injuries. The conflicting questions of fact necessary to a determination of these issues are for the jury and not the court.

The case appears to be quite similar to the case of O'Brien v. J. I. Case Co., 140 Neb. 847, 2 N.W.2d 107, 110, wherein we said: 'The two automobiles, in the instant case, were proceeding along an almost level, dry highway, with good visability, with nothing to interrupt their driving or make it difficult. The Waite car had been proceeding at 50 miles an hour; the O'Brien car at 40 to 45 miles. Obviously, as long at the cars retained their respective speeds, there would be no collision, but if the car ahead stopped suddenly or abruptly or slowed down instantly, without the driver thereof giving any signals, as required by law, the driver of the car following would be confronted with an emergency. We believe O'Brien acted as an ordinary prudent person would act under like or similar circumstances. He immediately applied his brakes in an endeavor to stop his car and tried to turn to the left and avoid the Waite car. He could not turn to the right; the girls were in that vicinity.

'In consideration of the entire record, we conclude that the negligence of the defendant driver and the negligence of the driver of the car in which the plaintiff was riding presented a jury question under proper instructions.'

We call attention to the fact that many more conflicts in the evidence exist in the case at bar than in the O'Brien case. There is evidence that defendant's sister was thrown into...