Kresha v. Kresha

• Citation: 216 Neb. 377,344 N.W.2d 906
• Decision Date: 03 February 1984
• Docket Number: No. 82-754,82-754
• Parties: Adolph KRESHA, Appellant, v. Raymond L. KRESHA, Appellee.
• Court: Supreme Court of Nebraska

Page 906

344 N.W.2d 906

216 Neb. 377

Adolph KRESHA, Appellant, v. Raymond L. KRESHA, Appellee.

No. 82-754.

Supreme Court of Nebraska.

Feb. 3, 1984.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. In determining the sufficiency of jury instructions on appeal to this court, such instructions are to be read as a whole; and when they fairly submit the case and the jury could not have been misled, there is no prejudicial error.

2. Jury Instructions. It is not error for the trial court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party's theory of the case.

3. Rules of the Road: Motor Vehicles. The statutory rules of the road in Nebraska are not applicable to the operation of motor vehicles on private property unless specifically so provided. Neb.Rev.Stat. § 39-603 (Reissue 1978).

4. Rules of the Road: Motor Vehicles. In the absence of statutory regulation common-law rules apply.

5. Courts. The common law is inseparably identified with the decisions of the courts and can be determined only from such decisions in former cases bearing upon the subject under inquiry, and absent controlling decisions from state courts, precedents in other jurisdictions become persuasive.

6. Negligence: Motor Vehicles. An operator, in backing a vehicle at places other than a public street or highway, must exercise ordinary care. The situation may require the keeping of a lookout and, under some circumstances, an effective warning signal of the intention to back. Generally speaking, the backing does not constitute negligence where the operator does everything that a reasonably prudent person can do to avoid injury to others.

7. Jury Instructions. Trial court's instructions to jury in this case examined and found sufficient.

8. Witnesses. A party has a right to cross-examine a witness with regard to an interest which affects credibility.

9. Insurance. Where the fact of insurance is relevant to some issue in the case, it cannot properly be excluded, but where not relevant to any such issue, evidence of the existence of insurance coverage is inadmissible.

10. Rules of Evidence. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Neb.Rev.Stat. § 27-403 (Reissue 1979).

11. Evidence: Juries. Where different minds may draw different conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined.

12. Directed Verdict. In considering the propriety of a directed verdict, the trial court must resolve every controverted fact in favor of the party against whom the verdict is sought and give that party the benefit of every inference which can reasonably be drawn.

George H. Moyer, Jr., of Moyer, Moyer, Egley & Fullner, Madison, for appellant.

Barlow, Johnson, DeMars & Flodman, Lincoln, for appellee.

WHITE and CAPORALE, JJ., BRODKEY, J., Retired, BLUE, District Judge, and COLWELL, District Judge, Retired.

BRODKEY, Justice, Retired.

Plaintiff below, Adolph Kresha, appeals to this court from the verdict of the jury and judgment entered thereon by the district court for Butler County in favor of the defendant, Raymond L. Kresha, in an action brought to recover damages for injuries sustained when the defendant, Adolph's son, allegedly backed into him with a pickup truck. The case was submitted to the jury on the sole issue of the negligence of the defendant, the contributory negligence of the plaintiff not having been submitted to the jury, although pled as a defense in the action.

In his brief on appeal to this court, the plaintiff makes numerous assignments of error which he contends entitle him to a reversal of the judgment in favor of the defendant. The principal issue involved in this appeal is whether the court erred in submitting the case to the jury on improper instructions. The plaintiff also alleges that the court erred in overruling his motion in limine; in not sustaining his motion for a directed verdict of liability against the defendant; and in refusing to admit evidence of the defendant's liability insurance.

By way of background the record reveals that the incident giving rise to this lawsuit occurred in the middle of a field on the farm operated by the defendant, Raymond Kresha (also known as Larry), who is the son of the plaintiff. It appears that Adolph had stopped by the farm that morning to obtain a sample of grain from a farm truck located in the field in question. He testified that he observed Raymond driving onto the field and followed him in his truck. He parked his truck approximately 15 feet north of the grain truck previously referred to.

Raymond testified that he saw his father follow him into the field, and thought that he was going to get a grain sample from the truck. He then decided to back his truck up to the grain truck so that his father could use the back of the pickup as a platform to aid him in reaching the sample. He further testified that as he began to back his truck, he observed his father walking around the front of the grain truck, and also saw his father looking at him. He stated that he backed his truck diagonally across the furrows of the field at approximately 4 miles per hour. When he was 10 to 15 feet from the truck, he looked into his rearview mirror and saw his father standing near it and looking at him. He slowed his pickup by taking his foot off the gas pedal, and then put on the brake and was "practically stopped" before the accident occurred. He testified that, despite his use of the brakes, the pickup slid down the last furrow next to the truck and into the side of the grain truck. Raymond admits that he does not know what his father did while the pickup moved the last 10 feet, and further admitted that he did not have Adolph in view the entire time that he was backing up.

Adolph's testimony was that he had climbed onto the grain truck and collected a sample in a cup, and then began to climb down. He stated that he heard a motor running, looked to the north, and for the first time saw Raymond's truck backing toward him, with the wheels spinning, about 17 feet away. Whereupon, he got as close to the cab of the grain truck as he could. He indicated that the left rear of the pickup struck him, and then pulled forward. He testified that he fell over and felt terrific pain in his legs, head, arm, and shoulder.

The principal issue in this case is whether the trial court improperly instructed the jury on the issues presented, as contended by the plaintiff. Plaintiff argues that the instruction on lookout and control was incomplete and therefore erroneous, and also argues that certain requested instructions were improperly refused.

The law is well settled that in determining the sufficiency of jury instructions on appeal to this court, such instructions are to be read as a whole; and when they fairly submit the case and the jury could not have been misled, there is no prejudicial error. Duling v. Berryman, 193 Neb. 409, 227 N.W.2d 584 (1975). We have also held that it is not error for the court to refuse a request for additional instructions where it has, on its own motion, fairly and fully instructed the jury on a party's theory of the case. Baumann v. Hutchinson, 124 Neb. 188, 245 N.W. 596 (1932).

To determine whether the instructions given by the trial court in this case were sufficient, it is first necessary that we determine what law applies to the operator of a motor vehicle on private property, or specifically, in the middle of a farm field. The first question that presents itself, therefore, is whether the statutory rules of the road in Nebraska are applicable. It is clear that they are not. Neb.Rev.Stat. § 39-603 (Reissue 1978) specifically provides in part: "The provisions of sections 39-601 to 39-6,122 relating to operation of vehicles refer exclusively to operation of vehicles upon highways except where a different place is specifically referred to in a given section ...." See, also, Bassinger v. Agnew, 206 Neb. 1, 290 N.W.2d 793 (1980); Johns v. Glidden, 173 Neb. 732, 114 N.W.2d 767 (1962). In the absence of statutory regulation we must therefore ask what law is applicable to such situations. It is clear that in that event the common law applies. See, Comment to NJI 7.01; Bassinger v. Agnew, supra; Johns v. Glidden, supra; Anderson v. Wilcox, 189 N.W.2d 541 (Iowa 1971).

The next question that logically presents itself is, How do we determine what the common law is? This question is answered in Whitehorn v. Dickerson, 419 S.W.2d 713 (Mo.App.1967), in which that court stated at 717: "Though it is said that the common law imports a system of unwritten law, not evidenced by statute, but by tradition and the opinions and judgments of the sages of the law ... the common law is inseparably identified with the decisions of the courts and can be determined only from such decisions in former cases bearing upon the subject under inquiry. Musser v. Musser, 281 Mo. 649, 656-660, 221 S.W. 46, 47-48(2)." In Whitehorn the court also held that absent controlling decisions from state courts, precedents in other jurisdictions become persuasive.

The common-law duty of a driver backing his vehicle on private property was considered and discussed in Ybarra v. Wassenmiller, 206 Neb. 164, 291 N.W.2d 725 (1980), which case involved an accident occurring when a camper-trailer was backing up in the parking lot of a bank and collided with a bank guard. In that case this court applied the rule that the driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain...