Lewis v. Miller

• Decision Date: 16 May 1930
• Docket Number: 27119
• Citation: Lewis v. Miller, 119 Neb. 765, 230 N.W. 769 (Neb. 1930)
• Parties: HERBERT LEWIS, JR., APPELLEE, v. LOUIS H. MILLER, APPELLANT
• Court: Nebraska Supreme Court

230 N.W. 769

119 Neb. 765

HERBERT LEWIS, JR., APPELLEE, v. LOUIS H. MILLER, APPELLANT

No. 27119

Supreme Court of Nebraska

May 16, 1930

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The court should submit only such issues to the jury as find some support in the evidence, but where an issue, without support in the evidence, is submitted and it clearly appears that the jury were not misled thereby, to the prejudice of the complaining party, reversible error cannot be predicated thereon.

Instructions complained of, given and refused examined, and held, the court committed no error in the giving or refusal of same.

A witness who has shown himself qualified to give an opinion as to the speed of a moving automobile may express an opinion as to the speed a car is moving, although the same be coming directly toward him, such fact not affecting the competency of his testimony but rather the weight to be given the same.

Where a party claims to have been misled or surprised by testimony of a witness called by him, it rests in the discretion of the court as to whether such party may be allowed to contradict the testimony of such witness by the introduction of alleged contradictory or variant statements previously made by the witness to such party or his counsel; and, unless it appears from the record that there is an abuse of such discretion, reversible error is not committed. Held, under the foregoing rule and the facts and circumstances disclosed in the record, no abuse of discretion appears in the refusal of the trial court to receive in evidence certain written statements made by witnesses for defendant and offered by him, as tending to contradict testimony given by such witnesses when called as his witnesses.

The judgment on the verdict of the jury for the amount of plaintiff's damages, as reduced by remittitur ordered by the trial court, sustained.

Appeal from District Court, Douglas County; Leslie, Judge.

Action by Herbert Lewis, Jr., a minor by his father and next friend, Herbert Lewis, Sr., against Louis H. Miller. Judgment for plaintiff, and defendant appeals, and plaintiff cross-appeals.

Affirmed.

Crofoot, Fraser, Connolly & Stryker and James T. English, for appellant.

Leon & White, contra.

Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and DAY, JJ., and FITZGERALD and LOVEL S. HASTINGS, District Judges.

OPINION

HASTINGS, District Judge.

This is an action by Herbert Lewis, Jr., a minor, nineteen years of age, by his father as next friend, to recover damages on account of injuries received in an automobile collision between an automobile in which plaintiff, appellee, was riding as a passenger and an automobile owned and driven by defendant, appellant, Louis H. Miller. The jury returned a verdict in favor of plaintiff in the sum of $ 5,500. A remittitur was ordered by the trial court of $ 1,500. The remittitur was made and judgment was entered for $ 4,000. Defendant appeals therefrom, and plaintiff prosecutes a cross-appeal to restore the $ 1,500 ordered remitted.

One of the principal grounds of error urged by counsel for defendant is the giving of instructions Nos. 1 and 4 by the trial court upon its own motion. Instruction No. 1 complained of sets out five acts of negligence alleged by plaintiff in his petition. By instruction No. 4 the jury were instructed that it was necessary for the plaintiff, before he could recover, to establish by a preponderance of the evidence that negligence on the part of the defendant in some one or more of the particulars set forth in plaintiff's petition, or that the negligence on the part of the defendant in some one or more of the particulars set forth in plaintiff's petition concurring with the negligence on the part of the driver of the automobile in which the plaintiff was riding at the time of the collision, was the proximate cause of the collision between said automobiles.

The particular complaint made against these instructions is that the trial court submitted certain alleged acts of negligence on the part of the defendant which found no support in the evidence. The particular acts of negligence complained of, submitted by said instructions, are:

"That the defendant's view of vehicles was obstructed by reason of the fact that there were three other occupants besides himself in his automobile, making it impossible for defendant to see approaching automobiles coming from the south toward the north."

"That the defendant's automobile was equipped with defective brake lining and braking appliances at the time of said collision."

A proper consideration of this question and other alleged errors requires an examination of the evidence. There is little conflict in the evidence. The collision complained of occurred on the 24th day of June, 1928, at about 7:30 p. m on Pacific street a short distance west of the private driveway leading from the grounds of the Highland Country Club in Douglas county. Pacific street, on which the collision occurred, is a graveled highway 34.5 feet in width from shoulder to shoulder and runs east and west. The driveway from the club grounds intersects Pacific street nearly at right angles, and is about 40 feet in width at the intersection. West of the north end of the driveway, on Pacific street, there rises a hill, the top or crest being 300 feet west of the intersection. The hill in question obstructs the view from the east beyond the crest. From the top of the hill there is a decline to the north end of the driveway. From the north end of the driveway, where the same connects with Pacific street, there is a clear view westward to the top of the hill, and also a clear view along said street eastward from the top of the hill to where the driveway connects therewith. There was some shrubbery along the west side of said driveway which extended nearly to the intersection, which, to some extent, obscured the view of said driveway from persons coming east along Pacific street. However, an automobile might be seen, by those traveling eastward along Pacific street, as it emerged from the driveway and before entering upon Pacific street. The automobile in which plaintiff was riding was a Chevrolet coach occupied by five persons. The plaintiff occupied the front seat with one Boyer, the driver of the car; the other three persons occupied the back seat. The defendant, at the time of the collision, was driving an Oldsmobile coupe, occupied by three persons other than defendant; one of the persons being seated upon the lap of another. The car in which plaintiff was a passenger traveled north from the club house and, at a point where a clear view might be had of Pacific street to the east and to the west, the car was stopped and the driver of the car and a passenger, Linwood Hall, looked both to the east and west to ascertain if there was any vehicle upon the street that might interfere with entering upon said street. Seeing none the driver of the car put the car in first gear and proceeded to enter upon said street, driving the car to the north at a speed of about five or six miles an hour. When in about the middle of the street, the driver and one Hall, an occupant of the car, looked to the westward and saw the automobile of defendant coming over the top of the hill. The plaintiff did not see the car driven by defendant until it was about 150 feet from them. The car in which plaintiff was riding proceeded very slowly from that point in a northwesterly direction on the north side of the center of the street, and at the time of the collision was almost stopped. When the car driven by defendant was first observed it was north of the center of the street and it remained upon the wrong side of said street until a very short distance from the other automobile, when it swerved further to the left and then back to the right, striking the car in which plaintiff was riding upon the left side near the door and shoving it about 35 feet to the east and a little to the north into the ditch on the north side of the street. The evidence on behalf of plaintiff is that defendant's car was being driven at an estimated speed of from 50 to 60 miles an hour at and just prior to the collision. Defendant estimated the speed of his car at the top of the hill as from 35 to 40 miles an hour, and says that he did not slacken his speed or retard his motor up to the point of the collision, although he was going down grade and his speed must have increased on account thereof. He also testified that, from the top of the hill to a point about 50 or 75 feet west of where the collision took place, he traveled partly to the north of the center of the street and at that point his attention was called to the other car, which, he says, he had not seen before on account of his looking down at the road. He says that when his attention was called to the other car it was about in the middle of the street and moving slowly; that he attempted to apply his brakes and go around in front of the car by going further north and, realizing he could not do so, he turned his car to the right and the collision took place; that when the collision took place the other car was headed in a northwesterly direction and the left front part of his car struck the other about the middle of the left side. The evidence further discloses that immediately following the collision the defendant told a man that his "brakes would not hold," and that some five months after the accident the defendant told another "if his brakes had been in good condition the accident would never have happened." The defendant does not deny he made such statements. The foregoing admissions of defendant, coupled with the fact that when he applied his brakes...