Kent v. Crocker

• Citation: 562 N.W.2d 833,252 Neb. 462
• Decision Date: 09 May 1997
• Docket Number: No. S-95-657,S-95-657
• Court: Supreme Court of Nebraska
• Parties: Marjorie KENT, Personal Representative of The Estate of Roy L. Kent, deceased, Appellant, v. Louis L. CROCKER, Personal Representative of the Estate of Rosalie Crocker, Deceased, Appellee.

Page 833

562 N.W.2d 833

252 Neb. 462

Marjorie KENT, Personal Representative of The Estate of Roy L. Kent, deceased, Appellant, v. Louis L. CROCKER, Personal Representative of the Estate of Rosalie Crocker, Deceased, Appellee.

No. S-95-657.

Supreme Court of Nebraska.

May 9, 1997.

Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Verdicts: Juries: Appeal and Error. When reviewing a jury verdict, an appellate court considers the evidence and resolves evidential conflicts in favor of the successful party.

3. Verdicts: Appeal and Error. A civil verdict will not be set aside where evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide issues of fact.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

5. Jury Instructions: Appeal and Error. It is not error for a court to refuse to give a requested instruction if the substance of the requested instruction is contained in those instructions actually given.

6. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

7. Negligence. In cases where the plaintiff's negligence is equal to or greater than the negligence of the defendant, the plaintiff is barred from recovery.

Lawrence H. Yost, of Yost, Schafersman, Yost, Lamme, Hillis & Mitchell, P.C., Fremont, for appellant.

Donald D. Schneider, of Schneider & Hartmann, P.C., Fremont, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

In a wrongful death case arising from a car-pedestrian accident, the jury found that

Roy L. Kent and Rosalie Crocker were equally negligent. Marjorie Kent appeals.

SCOPE OF REVIEW

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

When reviewing a jury verdict, an appellate court considers the evidence and resolves evidential conflicts in favor of the successful party. Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995).

A civil verdict will not be set aside where evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide issues of fact. Patterson v. City of Lincoln, 250 Neb. 382, 550 N.W.2d 650 (1996).

FACTS

In Fremont, Nebraska, Lincoln Avenue is a paved two-lane street running north and south. Linden Avenue is a paved two-lane street running east and west. Stop signs require the east-west vehicle traffic on Linden Avenue to stop at the intersection of Lincoln Avenue.

On August 22, 1992, at approximately 11 a.m., Rosalie Crocker was driving north on Lincoln Avenue. It was sunny, and visibility was clear. At the same time, Roy Kent was walking east along Linden Avenue near the intersection of Lincoln and Linden Avenues. When Roy Kent reached Lincoln Avenue, he began to cross the street. As he was entering the northbound lane of Lincoln Avenue, Rosalie Crocker's vehicle struck him. Roy Kent died from the injuries caused by the accident.

A police investigation disclosed that Rosalie Crocker's vehicle had left no skid marks. Rosalie Crocker died prior to trial due to causes unrelated to the accident. However, when she was interviewed by a police officer at the scene of the accident, she stated: "I was driving north on Lincoln. The minute I saw him I put on the brake, but I wasn't fast enough. He was right beside me." On the day after the accident, the same officer interviewed Rosalie Crocker at her home. She then stated that "she did not see the gentleman until the last minute."

There were no eyewitnesses to the accident. However, Don Paseka was driving approximately one block behind Rosalie Crocker's vehicle at the time of the accident. Paseka estimated the vehicle's speed to be around 30 m.p.h. Paseka did not see Roy Kent before he was struck by Rosalie Crocker's vehicle. Paseka testified that he saw Rosalie Crocker's brake lights come on after Roy Kent was hit by the vehicle and that the vehicle did not turn, swerve, or take any sort of evasive maneuver to avoid the accident.

The defendant's expert, Ted Sokol, an engineer and professor in the college of engineering and technology at the University of Nebraska, performed an accident reconstruction and analysis of the accident. Sokol opined, with a reasonable degree of engineering certainty, that Roy Kent was not in the crosswalk at the time Rosalie Crocker's vehicle struck him. In Sokol's opinion, Roy Kent was between 4.4 and 8 feet south of the south edge of the crosswalk at the time of the accident.

Sokol further testified that when Roy Kent stepped beyond the west curb line, he was 20 feet from the point of impact and Rosalie Crocker's vehicle was approximately 300 feet south of the point of impact. When Roy Kent was 15 feet from the point of impact, the vehicle was 225 feet south of the point of impact. When Roy Kent was 10 feet from the point of impact, the vehicle was 150 feet south of the point of impact. When Roy Kent was 5 feet from the point of impact, the vehicle was 75 feet south of the point of impact. When Roy Kent was 2 feet from the point of impact, the vehicle was 30 feet south of the point of impact.

The plaintiff's expert, Ralph Ekstrom, a professor emeritus of engineering mechanics At trial, Rosalie Crocker's husband, Louis L. Crocker, and her treating ophthalmologist, Dr. Gregory Haskins, both testified that her vision was adequate to see Roy Kent on the day of the accident. Louis Crocker testified that Rosalie Crocker appeared to be able to drive adequately when she drove him places in August 1992 and that on the occasions when she drove after the accident, she appeared to be able to see adequately. Louis Crocker stated that it was not until November 1992, when Rosalie was hospitalized with general systemic failure and was near death, that her left eye failed her and that she then stopped driving pursuant to her doctor's instructions.

at the University of Nebraska, testified[252 Neb. 465] that Roy Kent had a clear view of Rosalie Crocker's vehicle as he crossed Lincoln Avenue and that he should have been able to see the vehicle when it was at least 200 feet south of the intersection. Ekstrom gave the opinion that Roy Kent would have had the time and opportunity to avoid the accident had he noticed the oncoming vehicle at any time before he crossed over the centerline of Lincoln Avenue. Ekstrom concluded that Roy Kent was facing east as he crossed the street and that he did not observe the vehicle prior to impact.

Haskins examined Rosalie Crocker on August 7, 1992, 15 days before the accident. He noticed that she had decreased vision in her right eye. However, he stated that when he saw her on August 7, he was satisfied that she could qualify to drive. Haskins testified that based on his examination of August 7 and his experience as an ophthalmologist, it was his opinion that on August 7, Rosalie Crocker could probably have seen a pedestrian 100 to 150 feet away. Haskins also opined based on reasonable medical probability that there was a high probability that Rosalie Crocker's vision would not have significantly changed during the 15 days between the August 7 examination and August 22, the date the accident occurred.

Following trial, the jury returned a verdict indicating that Rosalie Crocker's negligence was 50 percent of the cause of the accident and that Roy Kent's negligence was 50 percent of the cause of the accident. Accordingly, the district court entered a defense verdict, and Marjorie Kent timely appealed to the Nebraska Court of Appeals. Subsequently, we removed the appeal to our docket.

ASSIGNMENTS OF ERROR

In summary, Marjorie Kent argues that the district court erred in failing to properly instruct the jury on her theory of the case because the court rejected her requested jury instructions Nos. 1, 2, 3, and 4.

ANALYSIS

The fundamental issue on appeal is whether the district court erroneously failed to give Marjorie Kent's requested jury instructions. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996).

REQUESTED INSTRUCTION NO. 1

Marjorie Kent argues that the district court erred in failing to give her requested jury instruction No. 1, which stated as follows: "An automobile driver who knows or in the exercise of due care should know that because of the failing condition of their eyesight they pose a threat to the safety of themselves and others by operating a motor vehicle must bear responsibility for their own actions."

The district court refused to give this instruction and, instead, gave other instructions that addressed a person's duty of care. Instruction No. 8 given by the court stated: "Negligence is doing something that a reasonably Drivers are negligent if they do something a reasonably careful driver in the same situation would not have done or...