Kroeger v. Safranek

• Decision Date: 04 November 1955
• Docket Number: No. 33766,33766
• Citation: 72 N.W.2d 831,161 Neb. 182
• Parties: Mildred B. KROEGER, Administratrix of the Estate of Russell K. Kroeger, deceased, Appellee, v. Karl SAFRANEK, Appellant, Impleaded with: Prucka Transportation Company, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 831

72 N.W.2d 831

161 Neb. 182

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

No. 33766.

Supreme Court of Nebraska.

Nov. 4, 1955.

Syllabus by the Court.

1. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the accident could not have happened.

2. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with but independent of his acts and not flowing therefrom, and not reasonable in the nature of things to be contemplated or foreseen by him, and produced the injury, it is the dominant cause.

3. If the original negligence is of a character which, according to the usual experience of mankind, is liable to invite or induce the intervention of some subsequent cause, the intervening cause will not excuse it, and the subsequent mischief will be held to be the result of the original negligence.

4. A cause of an injury may be the proximate cause notwithstanding it acted through successive instruments or a series of events, if the instruments or events were combined in one continuous chain or train through which the force of the cause operated to produce the disaster.

5. The proper method of presenting a case to the jury is a clear and concise statement by the court of those issues which find support in the evidence and not by substantially copying the pleadings of the parties and if, by doing the latter, it results in prejudice to the complaining party it is a sufficient ground for reversal.

6. The office of the ad damnum in a pleading is to fix the amount beyond which a party may not recover on the trial of his action.

7. It is the duty of the trial court to present to the jury those issues which are raised by the pleadings and which find support in the evidence.

8. In an action brought by a personal representative in behalf of statutory beneficiaries to recover damages for the death caused by the wrongful act of the defendant, recovery must be measured by the pecuniary loss suffered by the beneficiaries by being deprived of what they would have received from the earnings of the injured party from the date of his death, had he lived out his full expectancy.

9. We are required by our law to restrict the recovery to the pecuniary value lost to the family. This, however, is not necessarily limited to the dollars and cents which the deceased would probably have expended upon his family if he had lived. Care and maintenance of children mean more than this. The jury may properly consider his services in the superintendence and attention to, and care of, his family and the education of his children.

10. The charge of the trial court to the jury should be confined to the issues presented by the pleadings and supported by evidence.

11. It is always the duty of the court to instruct the jury as to the proper basis upon which damages are to be estimated. The jury should be fully and fairly informed as to the various items or elements of damage which they should take into consideration in arriving at their verdict, otherwise the jury may be confused and misled.

12. Medical or funeral expenses resulting from a wrongful death are recoverable as damages in an action under sections 30-809 and 30-810, R.R.S.1943, when the beneficiaries for whom the action is being brought have paid or have legally obligated themselves to pay such expenses and may be recovered in a separate cause of action.

13. Maps, drawings, and diagrams illustrating the scenes of a transaction and the relative location of objects, if shown to be reasonably accurate and correct, are admissible in evidence.

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

Pilcher, Haney & Howard, Omaha, for Mildred B. Kroeger.

McCormack & McCormack, Omaha, for Prucka Transp. Co.

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

WENKE, Justice.

This appeal from the district court for Saunders County involves an action based on the alleged wrongful death of Russell K. Kroeger. It was brought by Mildred B. Kroeger, administratrix of decedent's estate, for the benefit of his widow and 5-year-old daughter as next of kin. Plaintiff recovered a verdict of $37,725 against defendant Karl Safranek and judgment was entered thereon. Defendant Safranek thereupon filed a motion for new trial and perfected this appeal from the overruling thereof.

Decedent was an employee of Prucka Transportation, Inc., a corporation, and, at the time of his death, was acting within the scope of that employment. In view thereof the employer has paid the widow workmen's compensation benefits and is entitled to be subrogated to any recovery by appellee to the extent of such payments. It was for that reason made a party defendant in this action.

The accident, which resulted in the death of Russell K. Kroeger, happened about 11 p. m. on Thursday, July 23, 1953, on U. S. Highway No. 30-A, also identified as State Highway No. 92, at a point in Saunders County that is about 7 1/2 miles west of Wahoo, Nebraska. It occurred when the trailer of a tractor-trailer unit owned and being driven east on U. S. Highway No. 30-A by appellant collided with the tractor of a tractor-trailer unit being driven west on this same highway by decedent for Prucka Transportation, Inc. We shall hereinafter refer to these trucking units as either the appellant's truck or the Prucka truck. From the evidence adduced the jury could properly find that the impact occurred north of the marked center line of the paved highway; that it was occasioned by the weaving of the front end of the trailer of appellant's truck north across the center line and into the left side or front fender and wheel of the tractor of the Prucka truck; that the Prucka truck was, at that time, being driven by decedent west in the north lane for westbound traffic; that the initial blow caused the back end of appellant's trailer to whip to the north; and that as a result the back end thereof also hit the tractor of the Prucka truck and resulted in the driver thereof losing control. The Prucka truck, subsequent to the collision, ended up in a cornfield to the south of the highway. When stopped it was facing southwest.

The foregoing is a general picture of when, where, and how the accident happened. We shall discuss some of the evidence in more detail in connection with the errors assigned. It is true appellant testified the collision occurred south of the center line of the highway but, since appellee obtained a verdict, we must accept, as established, the facts most favorable to her.

Appellant contends decedent's walking into the wires of a power line and being electrocuted was such an efficient intervening cause that it can be said, as a matter of law, that any negligence of the appellant, even though established, could not be and was not the proximate cause of decedent's death. He also contends that, in any event, decedent's death by electrocution was not a natural, probable, reasonable, and proximate consequence of any act on his part nor reasonably, in the nature of things, to be contemplated or foreseen by him.

There was an electric power line located just south of the highway at the point where the accident happened. It ran parallel with the highway and was located some four or five rows out in the cornfield. This cornfield was located just south of the highway and adjacent thereto. The Prucka truck, in leaving the highway and entering this cornfield, broke off a pole supporting this power line. The breaking of the pole left some 5 or 6 feet of the upper and thereof attached to the power line wires by insulators, neither of the wires having been broken by the impact. The weight of this piece of pole, together with the wires, caused the power line to sag. It sagged into the tops of the corn. After the truck he was driving had stopped the decedent got out on the left side of the cab and, with the aid of a flashlight, started for the highway. He first walked around the front of the truck and then headed straight north, the highway at this point running east and west. As he came to where the wires were hanging in the corn he went down. Whether he fell or came directly in contact with a wire and was knocked down is not shown. However, he ended up lying on the ground with his body across one wire, the other suspended some 4 feet above him. He was in this position a considerable length of time before he could be moved. His death was caused by electrocution.

'Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the accident could not have happened.' Anderson v. Byrd, 133 Neb. 483, 275 N.W. 825. See, also, Danielsen v. Eickhoff, 159 Neb. 374, 66 N.W.2d 913.

'A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with but independent of his acts and not flowing therefrom, and not reasonably in the nature of things to be contemplated or foreseen by him, and produced the injury, it is the dominant cause.' Driekosen v. Black, Sivalls & Bryson, 158 Neb. 531, 64 N.W.2d 88, 89. See, also, Johnson v. City of Omaha, 108 Neb. 481, 188 N.W. 122, 128.

"An injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted...