Kissinger v. United Parcel Service Co.

• Decision Date: 13 April 1999
• Docket Number: No. A-97-1159,A-97-1159
• Parties: David L. KISSINGER, Appellant, v. UNITED PARCEL SERVICE CO. et al., Appellees.
• Court: Nebraska Court of Appeals

Page 169

592 N.W.2d 169

8 Neb.App. 260

David L. KISSINGER, Appellant, v. UNITED PARCEL SERVICE CO. et al., Appellees.

No. A-97-1159.

Court of Appeals of Nebraska.

April 13, 1999.

Syllabus by the Court

1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law.

2. Judgments: Verdicts: Directed Verdict. A motion for judgment notwithstanding the verdict may be granted when the movant's previous motion for directed verdict, made at the conclusion of all the evidence, should have been sustained.

3. Motor Vehicles: Negligence. If the presence of ice or snow upon the road surface is known or should have reasonably been anticipated, the snow and ice are considered conditions rather than intervening causes and thus do not exonerate a motorist from the application of the range of vision rule.

Arthur R. Langvardt, of Langvardt & Valle, Hastings, for appellant.

Thomas D. Wulff and Kevin L. Flynn, of Welch & Wulff, Omaha, for appellees.

BEFORE MUES, INBODY, and CARLSON, Judges.

MUES, J.

INTRODUCTION

David L. Kissinger was a passenger in a vehicle that was struck from behind by a United Parcel Service Co. (UPS) truck being driven by Dan R. Hoselton. Following the close of the evidence at the jury trial, Kissinger moved for a directed verdict on the ground that Hoselton was negligent as a matter of law because he failed to maintain a proper lookout. The trial court denied the motion, and the jury returned a verdict in favor of the defendants. Kissinger filed a motion for judgment notwithstanding the verdict and for a new trial. Both motions were overruled, and Kissinger timely appeals.

BACKGROUND

On September 2, 1994, Kissinger filed a lawsuit against UPS, United Parcel Service, Inc., United Parcel Service General Services Co., and Hoselton (collectively the defendants), seeking to recover for injuries allegedly A jury trial was held on June 30 and July 1 and 2, 1997. The evidence, as is relevant to this opinion, is as follows:

incurred as a result of the motor vehicle accident. The petition alleged, inter alia, that on February 16, 1993, Kissinger was a passenger in a vehicle being driven by his son. Kissinger and his son were stopped at a stop sign when their vehicle was struck from behind by a UPS truck being driven by Hoselton. Kissinger claimed that as a direct and proximate result of the collision, he suffered injuries to his lower back. Kissinger claimed that Hoselton was negligent in failing to keep a proper lookout, in failing to keep his vehicle under reasonable control, and in failing to stop at a traffic control device.

On February 16, 1993, Hoselton was driving a UPS "large brown package car" and was traveling east on Fourth Street in Hastings, Nebraska. Hoselton observed the Kissinger vehicle, also eastbound, stopped at a traffic control device when he was approximately three-quarters of a block away. When he was approximately half a block away, Hoselton applied his brakes and "started to slide on nothing but sheer ice." Hoselton was unable to stop and slid into the Kissinger vehicle. Hoselton estimated that he was traveling approximately 15 miles per hour when he began to apply his brakes.

The accident occurred at approximately 3 p.m. Hoselton started work at approximately 8:45 a.m. that day and, according to Hoselton, the roads were snow packed and icy "most everywhere." However, Hoselton testified that the intersection where the accident occurred was icier than the other roads he had encountered that day. Hoselton explained, "It was a very slick ice. Didn't have any snow on it. That area has always been that way because the Lincoln telephone building--Lincoln telephone at that time always shades that street, and the sun does not shine on it during the day."

At the close of the evidence, Kissinger moved for a directed verdict on the issue of liability. The trial court denied the motion. The jury returned a verdict in favor of the defendants. On July 14, 1997, Kissinger moved for judgment notwithstanding the verdict and for a new trial. The trial court overruled the motion on October 3, and Kissinger timely appeals.

ASSIGNMENTS OF ERROR

Kissinger alleges the trial court erred in overruling his motion for directed verdict, his motion for judgment notwithstanding the verdict, and his motion for a new trial.

STANDARD OF REVIEW

A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law. Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318 (1999); Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).

A motion for judgment notwithstanding the verdict may be granted when the movant's previous motion for directed verdict, made at the conclusion of all the evidence, should have been sustained. Fiscel v. Beach, 254 Neb. 678, 578 N.W.2d 52 (1998).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Reiser v. Coburn, 255 Neb. 655, 587 N.W.2d 336 (1998).

DISCUSSION

[N]egligence generally arises as a matter of law if one operates a motor vehicle on a public street or highway and, on account of the manner of operation, is unable to stop her or his vehicle or turn it aside without colliding with an object or obstruction on the street or highway within the operator's range of vision. Converse v. Morse [, 232 Neb. 925, 442 N.W.2d 872 (1989) ]; Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195 (1989); Prime Inc. v. Younglove Constr. Co.[, 227 Neb. 423, 418 N.W.2d 539 (1988) ]. The range of vision rule is applicable, notwithstanding that a motorist's vision is impaired by atmospheric or weather conditions, such as falling or blowing snow, rain, mist, or fog, Mantz v. Continental Western Ins. Co. [, 228 Neb Burkey v. Royle, 233 Neb. 549, 555, 446 N.W.2d 720, 724-25 (1989). See, also, Martin v. Roth, 252 Neb. 969, 568 N.W.2d 553 (1997).

447, 422 N.W.2d 797 (1988) ], and Prime Inc. v. Younglove Constr. Co., supra, and notwithstanding that a motorist's ability to maneuver the vehicle is impaired by the presence of ice or snow upon the road surface. See, Vrba v. Kelly, 198 Neb. 723, 255 N.W.2d 269 (1977)....

If the presence of ice or snow upon the road surface is known or should have reasonably been anticipated, the snow and ice are considered conditions rather than intervening causes and thus do not exonerate a motorist from the application of the range of vision rule. Burkey v. Royle, supra.

Kissinger argues that an application of the range of vision rule compels a finding that Hoselton was negligent as a matter of law. The defendants contend that the trial court properly submitted the issue of negligence to the jury because, under the facts of this case, there were questions of fact as to whether the range of vision rule rendered Hoselton negligent as a matter of law.

In Burkey v. Royle, supra, a car driven by Royle rear-ended a car in which Burkey was a passenger. On the date of the accident, the roads were snow packed and very icy. The Burkey vehicle had stopped in the center lane to turn into a grocery store parking lot. Royle testified that she was also traveling in the center lane. When she observed the Burkey vehicle stop, she did not think she would be able to stop in time, so she moved over into the right-hand lane. According to Royle, she was safely able to do this; however, she then hit something which caused the car to veer to the left, and she therefore struck the Burkey vehicle. Royle testified that she did not see the object that she hit but that she thought it was ice or a clump of snow.

The trial court refused Burkey's request to instruct the jury that Royle was negligent and that such negligence proximately caused the collision. The jury returned a verdict in favor of Royle. Burkey appealed. The Nebraska Supreme Court reversed the trial court's decision, noting that the range of vision rule applies "notwithstanding that a motorist's ability to maneuver the vehicle is impaired by the presence of ice or snow upon the road surface." Id. at 555, 446 N.W.2d at 724. In rejecting Royle's apparent argument that the presence of the snow and ice which Royle encountered excused her from being aware of the conditions and circumstances under which she was driving, the Supreme Court affirmed the following rule:

Therefore, the question resolves itself into whether Royle operated her vehicle in such a manner that she was unable to stop it or turn it aside without colliding with the Burkey automobile, an object on the street within her range of vision, and thus was negligent as a matter of law notwithstanding that her ability to control her vehicle may have been impaired by the presence of ice or snow on the street.

We have said that if the presence of ice or snow upon the road surface is known or should have reasonably been anticipated, the snow and ice are considered conditions rather than intervening causes and thus do not exonerate a motorist from the application of the range of vision rule.

Id. at 556, 446 N.W.2d at 725.

In Edgerton v. Lawry, 235 Neb. 100, 453 N.W.2d 743 (1990), the Nebraska Supreme Court found that the range of vision rule did not require a finding of the defendant's negligence as a matter of law. There, both Edgerton and Lawry were traveling in the same direction and approaching a stop sign. Edgerton applied her brakes, and as she did so, she hit a patch of ice and her vehicle slid to the left into a curb. Lawry, traveling behind Edgerton, apparently saw Edgerton's "problem" and, although she had already slowed in anticipation of stopping at the sign, tapped her brakes and geared down the manual transmission on her vehicle to...