Kohl v. Unkel

• Decision Date: 16 November 1956
• Docket Number: No. 34001,34001
• Citation: 79 N.W.2d 405,163 Neb. 257
• Parties: Irvin KOHL, Appellee, v. Loren G. UNKEL, Appellant.
• Court: Nebraska Supreme Court

Page 405

79 N.W.2d 405

163 Neb. 257

Irvin KOHL, Appellee, v. Loren G. UNKEL, Appellant.

No. 34001.

Supreme Court of Nebraska.

Nov. 16, 1956.

Syllabus by the Court.

1. Under section 25-1315.02, R.R.S.1943, a motion for directed verdict is an absolute prerequisite to a motion for judgment notwithstanding the verdict, and the trial court cannot, either upon its own motion or upon motion for judgment notwithstanding the verdict, set aside a verdict and enter a judgment notwithstanding the verdict, where no preliminary motion for a directed verdict has been made.

2. A party aggrieved by a verdict may move for a new trial upon the grounds that the verdict is 'not sustained by sufficient evidence, or is contrary to law' as provided in section 25-1142, R.R.S.1943, and the trial court has the power and authority to grant a new trial where such legal cause or reason therefor appears in the record and timely appropriate motion for new trial has been filed, notwithstanding the fact that no preliminary motion for directed verdict has been made.

3. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

4. When the driver of an automobile entering an intersection looks but fails to see an approaching automobile not shown to be in a favored position, the presumption is that the driver of the approaching automobile will respect his right-of-way, and the question of his contributory negligence in proceeding to cross the intersection is a jury question.

5. If the driver of an automobile entering an intersection looks for approaching vehicles but fails to see one which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law.

6. A motion for directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

7. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.

McKillip, Barth & Blevens, Seward, Moyer & Moyer, Madison, for appellant.

Frederick M. Deutsch, Norfolk, for appellee.

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

CHAPPELL, Justice.

Plaintiff, Irvin Kohl, brought this action against defendant, Loren G. Unkel, seeking recovery for personal injuries and damages to his car alleged to have been proximately caused by negligence of defendant when their cars collided at an intersection of county roads. Plaintiff alleged that defendant was negligent because he: (1) Failed to accord plaintiff the right-of-way at the intersection; (2) failed to maintain a proper lookout; (3) did not have his vehicle under proper control; and (4) drove at a rate of speed greater than was reasonable and proper under the circumstances and conditions of the road.

On the other hand, defendant's answer denied generally and alleged that any injuries and damages sustained by plaintiff were proximately caused by his own negligence. Defendant alleged that plaintiff was negligent because he: (1) Failed to accord defendant the right-of-way when he entered the intersection first; (2) failed to maintain a proper lookout; (3) failed to keep his vehicle under proper control; (4) drove at a rate of speed greater than was reasonable and proper under the circumstances and conditions of the road; and (5) failed to reduce his speed or turn aside to avoid collision. Also, in a cross-petition defendant sought recovery for personal injuries and damages to his car and for personal injuries to his wife upon an assigned claim, alleged to have been proximately caused by the aforesaid negligence of plaintiff.

For amended reply and answer plaintiff denied generally; incorporated and made his petition a part thereof; alleged that the aforesaid negligence of defendant was the sole proximate cause of the collision referred to in defendant's cross-petition; and alleged in paragraph No. 4 that wholly without plaintiff's knowledge and for a consideration of $11 to them paid, defendant and his wife had on September 27, 1954, executed, signed, and delivered a release of all claims or demands by them for personal injuries and medical expenses. A copy of such release was attached to and made a part of plaintiff's answer and reply, whereby it was alleged plaintiff had been entirely released and discharged except for damages to defendant's car.

Thereupon, defendant moved to strike said paragraph No. 4 upon the ground that the release allegedly purported to split a cause of action in tort and that language used therein rendered it ineffective and void. An alternative part of such motion is unimportant here. In a pretrial order, such motion was overruled.

It is well to note here that such purported release was never offered or received in evidence, or attempted to be used in defense either pro tanto or in toto, by plaintiff at or during the trial in any manner whatsoever. Thus, defendant's assignment here that the trial court erred in overruling defendant's motion to strike is simply moot and requires no further discussion except to say that under the record as presented we are not required to determine whether or not the release was legally effective or void as a bar to defendant's right of recovery.

The cause was tried to a jury and at conclusion of defendant's evidence plaintiff moved to dismiss defendant's cross-petition for insufficiency of the evidence to support a verdict thereon because the undisputed evidence showed that defendant was guilty of more than slight negligence as a matter of law which precluded any recovery upon his cross-petition. Thereto defendant objected upon the ground that the evidence presented a jury question upon the issue of whether defendant entered the intersection first and had the right-of-way under the statute. However, the trial court sustained plaintiff's motion and dismissed defendant's cross-petition with prejudice.

Thereafter the related issues of alleged negligence presented by plaintiff's petition, defendant's answer, and plaintiff's reply were submitted to the jury and it returned a verdict for plaintiff, awarding him $5,000 upon which judgment was rendered. Defendant's alternative motion for judgment notwithstanding the verdict or for new trial was overruled, and defendant appealed.

Here it should be said that defendant made no prerequisite motion for directed verdict either at conclusion of plaintiff's evidence or at conclusion of all the evidence. In In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526, 528, we held that:

'Under section 25-1315.02, R.R.S.1943, a motion for directed verdict is an absolute prerequisite to a motion for judgment notwithstanding the verdict, and the trial court cannot, either upon its own motion or upon motion for judgment notwithstanding the verdict, set aside a verdict and enter a judgment notwithstanding the verdict, where no preliminary motion for a directed verdict has been made.

'A party aggrieved by a verdict may move for a new trial upon the grounds that the verdict is 'not sustained by sufficient evidence, or is contrary to law' as provided in section 25-1142, R.R.S.1943, and the trial court has the power and authority to grant a new trial where such legal cause or reason therefor appears in the record and timely appropriate motion for new trial has been filed, notwithstanding the fact that no preliminary motion for directed verdict has been made.'

Thus, contrary to defendant's assignment and argument made herein, the trial court properly overruled his motion for judgment notwithstanding the verdict.

However, defendant did timely file a motion for new trial upon the ground, among others, that the verdict was not sustained by sufficient evidence and was contrary to law. Defendant's assignment with regard thereto will be hereinafter discussed.

Defendant assigned that the trial court erred in failing to define 'slight negligence' and 'gross negligence' in the instructions give. Defendant argued that a definition thereof 'is an integral part of the comparative negligence formula, and the failure to define these terms constitutes error' prejudicial to defendant. In that regard, however, defendant admits that 'the adoption of this rule requires the overruling of the case of Kelso v. Seward County, 117 Neb. 136, 219 N.W. 843,' which we are not inclined to do. Under the circumstances presented here, the assignment has no merit.

Defendant assigned that the trial court erred in permitting plaintiff to testify over objection that if he had not been injured he would have had the ability to labor and earn $200 a month without board and room in farming during an 8-month period of temporary total disability. The record clearly discloses that such evidence was not admitted to establish loss of earnings or profits, but its admission was specifically limited by the court to the matter of plaintiff's loss of earning ability during such period. We conclude that defendant's assignment has no merit. See, 25 C.J.S., Damages, § 87, p. 619, citing Yost v. Nelson, 124 Neb. 33, 245 N.W. 9, and numerous other cases. Authorities cited and relied upon by defendant are either distinguishable upon the facts or refute his contention.

Defendant's other assignments of error were in substance that: (1) Plaintiff's own evidence showed that he was guilty of...