Krepcik v. Interstate Transit Lines

• Decision Date: 16 July 1951
• Docket Number: No. 32974,32974
• Citation: 154 Neb. 671,48 N.W.2d 839
• Parties: KREPCIK v. INTERSTATE TRANSIT LINES.
• Court: Nebraska Supreme Court

Page 839

48 N.W.2d 839

154 Neb. 671

KREPCIK v. INTERSTATE TRANSIT LINES.

No. 32974.

Supreme Court of Nebraska.

July 16, 1951.

Syllabus by the Court

1. If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect.

2. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence.

3. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleading and evidence, and a failure to do so is prejudicial error.

4. It is the duty of the trial court, without request, to submit to and properly instruct the jury upon all the material issues presented by the pleadings and the evidence. This rule applies to the affirmative defense of contributory negligence.

5. Where specific charges of contributory negligence are pleaded and supported by proof the instructions should submit those specific charges to the jury for its determination. To fail to do so, whether or not requested to do so is error.

6. The provision in section 39-7,108, R.S.Supp., 1949, that 'No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing' is the basic speed rule. Other provisions following in the section are specific speed restrictions based on the existence of the fact situation or situations mentioned in the act.

7. Words defined in a prior statute will be understood in the same sense in subsequent statutes unless the contrary appears.

8. The definition of 'business district' in section 39-741, R.S.1943, applies to the provisions of section 39-7,108, R.R.Supp., 1949.

9. In determining whether or not an accident happened within a business district as defined in section 39-741, R.S.1943, and as used in section 39-7,108, R.S.Supp., 1949, the occupied frontage on both sides of the highway for three hundred feet or more traveled immediately before the accident by the vehicle involved is to be considered and land which is not occupied by buildings in use for business is not to be considered.

10. The restrictions set out in subsection (4) of section 39-7,108, R.S.Supp., 1949, are speed limitations upon the 'prima facie lawful' speeds fixed for a 'business district,' a 'residence district,' and 'any highway outside of a city or village.' They place a 'duty to decrease speed' below those prima facie lawful speeds when the conditions described exist. They prescribe conditions under which the 'prima facie lawful' speeds are 'unsafe' and 'shall not be lawful.'

11. Sections 39-746 and 39-748, R.S.1943, are to be construed together. The 'right half of the righway' as that term is used in section 39-746, R.S.1943, means the right half of the main traveled portion of the highway available for traffic.

C. B. Matthai, G. C. Holdrege and R. B. Hamer, Omaha, James G. McIntosh, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, William S. Padley, Gothenburg, for appellee.

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

SIMMONS, Chief Justice.

This action was before this court in Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533; Id., 152 Neb. 39, 40 N.W.2d 252; and Id., 153 Neb. 98, 43 N.W.2d 609. As a result of the trial here involved plaintiff secured a favorable jury's verdict upon her first and second causes of action. Defendant filed a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. These motions were overruled and judgment was rendered on the verdict. Defendant appeals. We reverse the judgment of the trial court and remand the cause.

Defendant presents here errors in the giving and refusing to give instructions relating to its defense of contributory negligence, and assigns as error the refusal of the trial court to grant the alternative motion for a new trial.

The factual situation generally is set out in the opinion in 152 Neb. 39, 40 N.W.2d 252, and will not be repeated here, although it will be necessary to refer to the evidence as to particular matters in order to dispose of the questions here presented. We will refer to the above case as our former opinion.

The defendant pleaded eight specifications of negligence of decedent. Seven of these are summarized in our former opinion.

In instruction No. 3 the court advised the jury as to the specifications of negligence which the plaintiff was required to prove, and stated that if the jurors were satisfied by a preponderance of the evidence that the propositions stated were true, they should find for the plaintiff, unless prevented by rules next following. They were also instructed as to the conditions under which they should find for the defendant on those propositions.

In instruction No. 4 the court advised the jury that if it found the defendant negligent in some manner proximately causing injury to the person and property of decedent, it should next consider the affirmative defense of contributory negligence, and that 'The burden of proving contributory negligence is upon the defendant.' The court then set out its construction of material allegations of defendant as to contributory negligence and advised the jury that if it found by a preponderance of the evidence that the propositions were true, the jury would find that the decedent was guilty of contributory negligence. The jury also was instructed as to the conditions under which it would find against the defendant upon its affirmative defense.

In instruction No. 5 the court advised the jury that if it found that both decedent and defendant had been negligent in some manner proximately causing the injuries complained of, it should then compare the negligence and determine from the evidence the degree of negligence of each of the parties. The court instructed as to the rights of the parties.

The defendant assigns the giving of instruction No. 4 as error in several particulars. The first one is that the instruction did not advise the jury that the defendant was entitled to the benefit of evidence adduced for the plaintiff.

We have recently stated the applicable rule as follows: 'If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect.' Mundy v. Davis, 154 Neb. 423, 48 N.W.2d 394, 397.

The better practice, of course, is that the instruction to that effect be included in the instruction on contributory negligence. That it was not so included here is patent. We recognized, however, in the above decision that if other instructions could reasonably be construed to properly advise the jury in that regard, it would be sufficient.

We have referred to the language in instructions Nos. 3 and 4 as to 'preponderance of the evidence.' There was also in instruction No. 5 the statement that the jury 'will determine from the evidence.' In the instruction with reference to the duty of the driver to obey stop signals there was a reference to considering 'all of the evidence.' There are other references to 'the evidence' in the instructions.

Our attention is also called to the instruction on credibility of witnesses wherein the jury was told 'It is your duty to carefully scrutinize and to dispassionately weigh the testimony of all the witnesses, giving to the several parts of the evidence such weight as in your judgment they should receive.' In connection with this instruction our attention is called to City of Beatrice v. Forbes, 74 Neb. 125, 103 N.W. 1069, 1071, and to the statement therein that 'It might perhaps have been better had the court said to the jury in plain terms that, in determining whether the plaintiff below was guilty of contributory negligence, they should take into consideration all the evidence before them upon that question, and that any evidence coming from the plaintiff or his witnesses in that respect should be considered together with that produced by the defendant. It can hardly be, however, that the jury were misled, as in its fourth instruction the court told them that, in determining the issues in the case, they should take into consideration the whole of the evidence and all the facts and circumstances proved on the trial, giving the several parts of the evidence such weight as they thought it entitled to.'

The instruction above quoted relates to witnesses. The quoted language from the City of Beatrice case relates to issues in the case. The case is not controlling here.

We think it patent that if these instructions are to be construed as meeting the requirements of the rule stated in the Mundy case, then it would in effect nullify the rule. It necessarily follows that the instructions given do not comply with the requirement of the rule as stated in the Mundy case.

This requires a consideration of the evidence of plaintiff to determine whether or not it contains anything that tends to prove the issue of contributory negligence.

In the former opinion in this case we held that the evidence of the speed of decedent's truck was subject to a reasonable inference that speed contributed to the happening of the accident but pointed out that no witness testified as to speed at the point of the collision and that no witness for plaintiff testified as to the speed at which decedent was traveling. In the instant case plaintiff's witnesses testified to a speed of 30 to 35 miles an hour up to the time the...