Melcher v. Murphy
| Decision Date | 19 March 1948 |
| Docket Number | 32321. |
| Citation | 31 N.W.2d 411,149 Neb. 541 |
| Parties | MELCHER v. MURPHY et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In stating the issues to the jury, it is error which may be prejudicial for the trial court to include allegations of which there is no proof.
2. The violation of a statute enacted in the interest of public safety is not negligence as a matter of law, but evidence of negligence to be considered in connection with all the other evidence in the case.
3. Negligence is the failure to do that which an ordinarily prudent person would do, or the doing of that which an ordinarily prudent person would not do, under the same circumstances.
4. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury, but on the other hand, where the evidence shows, beyond a reasonable dispute, that the plaintiff's negligence is more than slight as compared with the defendant's negligence, then it is proper for the trial court to instruct the jury to return a verdict for the defendant.
Cook & Cook and Charles H. Yost, all of Fremont, for appellants.
Sidner Lee & Gunderson, of Fremont, for appellee.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ., and WESTERMARK, District Judge.
The plaintiff brought this action against Leander S. Murphy and Fremont Ice & Fuel Company to recover damages for injuries sustained in a collision between the truck on which plaintiff was riding and a Chevrolet coupe driven by the defendant Murphy and owned by the Fremont Ice & Fuel Company. The City of Fremont was made a defendant under the provisions of the Workmen's Compensation Act.
On the morning of the accident the plaintiff, an employee of the City of Fremont street department, was cleaning weeds out of ditches on L Street which runs north and south between Jackson and Washington Streets. Harry Betts, a driver of a city dump truck, came by to inform a Mr. Maynard, who was working with plaintiff, that he should go to the city light plant to do other work. Plaintiff then requested Betts to take him to a truck used by plaintiff and located about two and a half blocks north. The truck driven by Betts was a Dodge truck equipped with the usual cab and a steel dump box which was loaded with trash. The plaintiff stepped on the right running board, facing north, with his back against the dump box, his left hand holding on the dump box, and his right hand on the door frame, with a pitchfork on the running board, resting against his body.
He testified that he was standing so that no part of his body was over the window. His testimony in this respect was verified by Betts the driver of the truck, and by Maynard, the other occupant. Betts stated that plaintiff did not obscure his vision to the east, that he saw the Murphy car and 'saw him coming.' This testimony was not contradicted by any of the defendants' witnesses.
The plaintiff testified that they proceeded north on L Street. When about 50 feet from the intersection of Jackson Street, where the collision occurred, he observed the Chevrolet coupe coming west on Jackson Street about 225 feet from the intersection. As the truck entered the intersection the coupe was about 80 feet away. He also observed that the coupe was traveling about 50 miles per hour. Plaintiff fixed the distances by certain houses situated on the north side of Jackson Street. He further testified that the truck was traveling approximately 10 or 12 miles per hour as it was driven north on L Street. He did not warn the truck driver of the approaching car.
Defendant Murphy, the driver of the Chevrolet coupe, testified that he was driving west on Jackson Street about 20 to 25 miles per hour, and as he approached L Street he observed the truck coming from the south. He further testified that the truck was not speeding.
The plaintiff's testimony was to the effect that the Chevrolet coupe ran into the truck, while defendants Murphy and Fremont Ice & Fuel Company claimed that the truck ran into the left front fender of the coupe. After the collision the truck took a northwesterly course and stopped at the northwest corner of the intersection. The coupe was in the northeast quarter of the intersection. Neither vehicle was severely damaged. Immediately after the accident plaintiff was found lying between the vehicles, injured, and requiring hospitalization.
The accident occurred in the forenoon of August 19, 1946. The streets involved were graveled. It was stipulated that the scene of the accident was not in a congested district.
At the close of plaintiff's evidence, and again at the end of all the evidence, the defendants Murphy and Fremont Ice & Fuel Company moved for a directed verdict, principally on the ground, in substance, that plaintiff was guilty of contributory negligence more than slight by riding on the running board of the truck. The motions were overruled and the case was submitted to the jury, which found against the plaintiff.
Plaintiff first contends that the court substantially copied the pleadings in the instructions. This court has repeatedly held that if prejudice results by such presentation of the issues to the jury, it is sufficient ground for reversal.
In the case of Granks v. Jirdon, 146 Neb. 585, 20 N.W.2d 597, 598, this court said: '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.' This rule was followed in Allen v. Clark, 148 Neb. 627, 28 N.W.2d 439. See, also, McClelland v. Interstate Transit Lines, 139 Neb. 146, 296 N.W. 757.
On examination of Instruction No. 2, wherein the court set forth the contentions of the parties as shown by the pleadings, we find the court presented, except as to the specific charges of negligence, a condensed form of the issues. It is our opinion that, with the exception of the charges of negligence, the court presented the issues clearly and that no prejudice resulted to plaintiff.
Plaintiff's next contention is that the court erred in submitting to the jury the question of speeding on the part of the driver of the truck on which plaintiff was riding, when there was no evidence of speeding. The pertinent parts of Instruction No. 2 relating to contributory negligence of plaintiff are as follows:
There appears to be no evidence that the truck was driven recklessly, or that it was speeding. The occupants of the truck testified that the truck was traveling 10 to 12 miles per hour. Defendant Murphy, in answer to the question, 'What was the fact as to the speed of the truck of the City of Fremont?' replied, Further, in answer to the next question, 'In other words, you don't claim that they was speeding?' he said, 'No.'
In this case there was no evidence that the truck on which plaintiff was riding was speeding. But this matter was given emphasis by the two charges of negligence, above stated. Herein was an issue of negligence not supported by any evidence and the instruction could only have had the effect of confusing the jury. We therefore conclude that for two reasons the court erred in submitting the issue of speeding as a defense. This court has repeatedly said in effect that where an element of negligence is pleaded and there is no evidence to support such element, it is prejudicial error to submit such issue to the jury. See McClelland v. Interstate Transit Lines, supra; Johnson v. Mallory, 123 Neb. 706, 243 N.W. 872; Koehn v. City of Hastings, 114 Neb. 106, 206 N.W. 19. On the other hand, while the fact as to excessive speed, if any, of the truck on which plaintiff was riding, might become material in determining what was the proximate cause of the accident, however such alleged negligence would not be imputed to plaintiff as a guest, but such guest may be responsible for the consequences of his own negligence in failing, if such was the fact, to perform the duties imposed upon him as such. See Hamblen v. Steckley, 148 Neb. 283, 27 N.W.2d 178.
The defendants Murphy and Fremont Ice & Fuel Company, hereinafter designated as appellees, urge that the plaintiff was guilty of contributory negligence more than slight by reason of riding on the running board of the truck in violation of section 39-742, R.S.1943, that therefore they were entitled to a directed verdict, and the instructions referred to above, if erroneous, were not prejudicial to plaintiff.
In support of this contention, the...
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