Kroeger v. Safranek, 34235

• Decision Date: 20 December 1957
• Docket Number: No. 34235,34235
• Citation: 87 N.W.2d 221,165 Neb. 636
• Parties: Mildred B. KROEGER, Administratrix of the Estate of Russell K. Kroeger, deceased, Appellee, v. Karl SAFRANEK, Appellant, Impleaded with Prucka Transportation, Inc., Appellee.
• Court: Nebraska Supreme Court

Page 221

87 N.W.2d 221

165 Neb. 636

Mildred B. KROEGER, Administratrix of the Estate of Russell K. Kroeger, deceased, Appellee, v. Karl SAFRANEK, Appellant Impleaded with Prucka Transportation, Inc., Appellee.

No. 34235.

Supreme Court of Nebraska.

Dec. 20, 1957.

Syllabus by the Court

1. To justify the overturning of a verdict supported by direct testimony on the ground that it is in conflict with natural laws or some established principle of mathematics, mechanics, physics, or the like, the indisputable physical facts must demonstrate beyond question that the supporting evidence is false and that the verdict is in fact without evidentiary support.

2. Where there is a reasonable dispute as to what the physical facts show, the conclusions to be drawn therefrom are for the jury.

3. A litigant is entitled to have the jury instructed as to his theory of the case as shown by the pleadings and evidence. A litigant, however, is not entitled to have repetitious allegations of the same act of negligence submitted to the jury.

4. When an instruction correctly states the law and a litigant does not consider it sufficiently specific as it relates to the evidence adduced, it is the duty of counsel to request an instruction that will supply the omission, and if he fails to do so the judgment will not ordinarily be reversed for such claimed defects.

5. The law does not provide any positive, definite mathematical formula or legal rule by which a jury shall fix the pecuniary loss suffered in the death of the head of a family. Ordinarily the value of ordinary services to the wife is left to the good judgment and common sense of the jury under the circumstances of each case.

6. To justify the granting of a new trial on the ground that the verdict is excessive, that fact must be plain and evident.

7. This court can properly set aside a verdict for excessiveness where there is no evidence to sustain it, or where reasonable minds can come to no conclusion other than that the verdict is the result of passion and prejudice. To do otherwise would constitute an invasion of the province of the jury.

H. V. Kanouff, Wahoo, Schaper & Schaper, Broken Bow, for appellant.

Robert W. Haney, Thomas J. Walsh, Benjamin M. Wall, Omaha, for appellee.

McCormack & McCormack, Omaha, for Prucka Transportation, Inc.

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

CARTER, Justice.

This is an action for wrongful death. It was commenced by Mildred B. Kroeger, administratrix of decedent's estate, for the benefit of is widow and 5-year-old daughter as next of kin. Plaintiff recovered a verdict for $46,165 and judgment was entered thereon. The defendant Safranek, hereinafter called defendant, appealed.

The case was previously before this court. Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831. The facts in the former case are correctly stated. We adopt such statement and we shall refer to the evidence in this case only as it bears upon the issues tried and the errors assigned. The assignments of error are that the verdict is not sustained by the evidence, that the verdict is excessive, and that the trial court erred in giving instructions numbered 2, 5, 6, 14, and 17.

The evidence shows that the action is the result of a collision between two large trucks. Plaintiff's decedent was operating a truck belonging to the Prucka Transportation Company in a westerly direction on U. S. Highway No. 30-A at a point about 7 1/2 miles west of Wahoo, Nebraska. The defendant was operating his own truck in an easterly direction immediately prior to the collision. Plaintiff produced evidence that defendant's truck came over the center line and caused the collision. Defendant produced evidence that decedent's truck crossed the center line onto his side of the highway and caused the accident. We determined on the former appeal that the evidence on these claims of negligence was sufficient to be submitted to the jury. The defendant contends on this appeal, however, that physical facts have been established which preclude a recovery by the plaintiff. We shall discuss the facts giving rise to this contention.

The evidence shows that Mr. and Mrs. Elmer Gulick were following defendant's truck for a distance of 10 to 12 miles immediately prior to the accident. They testified that defendant's truck was weaving back and forth across its side of the highway and that on several occasions it passed across the center line. They testified further that the movements of defendant's truck were such that they did not deem it safe to attempt to pass it. They followed about 300 feet to the rear of the truck. They testified that they saw the accident and each described it as follows: The Prucka truck driven by plaintiff's decedent was traveling west and was at all times on its right-hand side of the highway. They each testified that immediately prior to meeting the Prucka truck, defendant drove his truck to the right and onto the 12- inch curb on his right-hand side of the highway. They said that as he turned his truck back toward the center of the road, the front end of the trailer crossed over the center line and was hit on the left front corner by the Prucka truck. They said, also, that the rear of the trailer whipped around and that it also was hit by the Prucka truck. These two witnesses were strangers to all the parties to the action prior to the accident; they were in a position to see, and their evidence is unequivocal.

The defendant testified that he was driving a 2-ton tractor with a 32-foot, factorymade, flatbed trailer. The trailer was hitched to the tractor by means of a fifth wheel and a kingpin. When so connected the front of the trailer has no side movement. Mr. W. F. Weiland, a professor of mechanical engineering at the University of Nebraska, testified that the blow to the left front end of defendant's trailer, as hereinbefore described, could not cause the rear end of the trailer to swing to its left, but would, on the other hand, cause it to swing to its right.

It is upon this state of the record defendant contends that plaintiff is barred from recovery because of undisputed physical facts. It is a general rule that nature's unchanging laws and the unvarying principles of mechanics cannot be turned aside by a verdict of a jury. But to justify the overturning of a verdict supported by direct testimony on the ground that it is in conflict with natural laws or some established principle of mathematics, mechanics, physics, or the like, the indisputable physical facts must demonstrate beyond question that the supporting evidence is false and that the verdict is in fact without evidentiary support. See, Hessler v. Bellamy, 128 Neb. 571, 259 N.W. 514; Dederman v. Summers, 135 Neb. 453, 282 N.W. 261; Young v. Stoetzel, 159 Neb. 624, 68 N.W.2d 186.

Decedent's truck was traveling west on the orth half of the highway. The tire marks of the Prucka truck on the pavement at the point of the accident were on the north side of the center line. The defendant said that he did not drive his tractor over the center line at the scene of the accident. The witnesses Gulick stated that they could not see the defendant's tractor and the course it took. The...