Knies v. Lang

• Decision Date: 24 January 1928
• Docket Number: 25316
• Citation: 217 N.W. 615,116 Neb. 387
• Parties: HENRY KNIES, APPELLANT, v. CAROLINE LANG, APPELLEE
• Court: Nebraska Supreme Court

217 N.W. 615

116 Neb. 387

HENRY KNIES, APPELLANT, v. CAROLINE LANG, APPELLEE

No. 25316

Supreme Court of Nebraska

January 24, 1928

APPEAL from the district court for Gage county: WILLIAM J. MOSS JUDGE. Affirmed.

AFFIRMED.

Grant G. Martin and Bartos, Bartos & Placek, for appellant.

Rinaker Kidd & Delehant, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and EBERLY JJ., and REDICK, District Judge.

OPINION

EBERLY, J.

This is an action for damages caused by personal injuries alleged to have been suffered by the plaintiff, and of which it is charged that negligence of the defendant was the proximate cause. Among the facts disclosed by the pleadings and evidence are: That the defendant, at the time plaintiff's injuries were sustained, was the owner of a three-story brick building, having a round bay window on the side adjacent to a public street, extending from the second story to the roof; that the section of this bay window were and are connected by castings or frames; that on April 28, 1925, during a high wind, as plaintiff was passing by, a board was blown from this bay window of which it formed a part, and in descending fell upon the plaintiff, causing the injury set forth in his petition.

Trial was had in the district court to a jury. After plaintiff had introduced his evidence, and finally rested, the defendant orally moved the court to instruct the jury "to find and return a verdict in favor of the defendant and against the plaintiff" on the ground of the insufficiency of the evidence. Thereupon the plaintiff's attorney, before the motion thus presented in behalf of the defendant had been ruled upon, orally submitted the following in behalf of his client to the consideration of the court: "Comes now the plaintiff, the defendant having made a motion for an instructed verdict, and joins in with him and asks the court to instruct the jury to return a verdict for the plaintiff and against the defendant for the same reasons given by the defendant in her motion." The ruling of the district court that immediately followed this procedure was: "That ends the case; the first motion will be sustained, and the second motion will be overruled."

Thereupon, pursuant to instruction of the district court duly given, the jury returned a verdict in favor of the defendant and against the plaintiff, which verdict was duly and regularly entered in said cause. This was followed by the filing of motion for new trial on part of plaintiff, which was overruled, and from which ruling the plaintiff appeals.

These facts thus appearing in the record necessitate the application of the well-established rule in this jurisdiction that, where both parties to an action ask for a directed verdict, the action of the court in granting one request has the same force and effect as would a verdict of the jury. Neither party can thereafter predicate error on the court's failure to submit the case to the jury. Adler v. Royal Neighbors of America, 90 Neb. 56, 132 N.W. 716; Howell v. Bowman, 89 Neb. 389, 131 N.W. 597; Davison v. Land, 89 Neb. 58, 130 N.W. 848; Henton v. Sovereign Camp, W. O. W., 87 Neb. 552, 127 N.W. 869.

The reason which underlies this rule of procedure is set forth in Segear v. Westcott, 83 Neb. 515, 120 N.W. 170, in the following language: "Where each of the parties to a trial by jury requests the court to charge them to return a verdict in his favor, he waives his right to any finding or trial of the issues by the jury, and consents that the court shall find the facts and declare the law. An acceptance of these waivers and a peremptory instruction by the court in favor of either party constitutes a general finding by the court of every material issue of fact and of law in favor of the successful party. The case is then in the same situation in which it would have been if both parties had filed a written waiver of a jury and it had been tried by the court. Each party is estopped by his request from reviewing every issue of fact upon which there is any substantial conflict in the evidence, and the only questions which the instruction presents to an appellate court are: Was the court's finding of facts without substantial evidence to sustain it? And was there error in its declaration or application of the law?"

See United States v. Bishop, 125 F. 181; Bowen v. Chase, 98 U.S. 254, 25 L.Ed. 47; Beuttell v. Magone, 157 U.S. 154, 39 L.Ed. 654, 15 S.Ct. 566; Laing v. Rigney, 160 U.S. 531, 40 L.Ed. 525, 16 S.Ct. 366; Chrystie v. Foster, 61 F. 551; Stanford v. McGill, 6 N.D. 536, 72 N.W. 938; Provost v. McEncroe, 102 N.Y. 650, 5 N.E. 795; Sturmdorf v. Saudners, 102 N.Y.S. 1042; Aber v. Twichell, 17 N.D. 229, 116 N.W. 95; Larson v. Calder, 16 N.D. 248, 113 N.W. 103.

The controlling question presented and determined in the district court upon the pleadings and the evidence was that of negligence. Upon all the evidence before it, the district court, in the due exercise of its lawful powers, in effect, determined that the defendant had not failed in his duty to the public, of which the plaintiff was one. Accepting, for the purposes of this discussion, plaintiff's contention that the rule of law applicable to this case is, "that it is the duty of the owner of property abutting on a public highway or street to exercise reasonable care to prevent injuries to passers-by from its defective or dangerous condition," wherein does the evidence affirmatively disclose that the defendant had failed to do so?

In this connection it is to be also remembered that in this jurisdiction, upon the issue of negligence, the burden of proof rests upon him who alleges it, and the burden of proof does not shift during the trial. Spears v. Chicago, B. & Q. R. Co., 43 Neb. 720, 62 N.W. 68; Swift & Co. v. Holoubek, 60 Neb. 784, 84 N.W. 249; Riley v. Missouri P. R. Co., 69 Neb. 82, 95 N.W. 20; Lincoln Traction Co. v. Shepherd, 74 Neb. 369, 104 N.W. 882.

Then, too, upon all matters of disputed evidence, and upon all questions presented by the undisputed evidence wherein different and reasonable minds might fairly arrive at different conclusions as to the issuable facts to be determined, this tribunal is concluded by the findings of the trial court.

At this point we do not overlook plaintiff's contention that the doctrine expressed by the maxim res ipsa loquitur is applicable, and the facts in the instant case impose on this court a present duty of defining its position on the principle embodied in this maxim quoted. With this contention we cannot agree. Under the circumstances of this case, even if the extreme construction of the doctrine res ipsa loquitur would, in a proper case, receive favorable consideration by this tribunal, it can avail...