Meyer v. Platte Valley Const. Co.
| Decision Date | 27 December 1946 |
| Docket Number | 32113. |
| Citation | 25 N.W.2d 412,147 Neb. 860 |
| Parties | MEYER v. PLATTE VALLEY CONST. CO. et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A motion for a directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.
2. In negligence cases, the burden of proof is upon plaintiff to show by a preponderance of the evidence that an accident was proximately caused by some negligent act charged, directly attributable to defendant, and to support a verdict, negligence must be so established, either by direct proof or by physical facts or circumstances, of sufficient weight from which a reasonable inference of the same may arise.
3. If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appear in evidence adduced for plaintiff.
4. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury. It is only where the evidence shows beyond reasonable dispute that plaintiff's negligence is more than slight as compared with defendant's negligence, that it is proper for the trial court to instruct the jury to return a verdict for defendant.
5. If the driver of a motor vehicle entering an intersection looks for approaching vehicles but fails to see one which is favored over him under the rules of the road, he is ordinarily guilty of contributory negligence sufficient to bar a recovery as a matter of law.
6. However, when the driver of a motor vehicle entering an intersection looks but fails to see an approaching motor vehicle not shown to be in a favored position, the presumption is that the driver of the approaching vehicle will respect his right-of-way and the question of his contributory negligence in proceeding to cross is ordinarily a jury question.
7. Extrajudicial statements of fact made by a party relating to matters material to the issues in a controversy are available to the adverse party in a trial thereof as admissions against interest or for impeachment which statements are, however not conclusive but may be explained, rebutted or contradicted, and thereafter are to be given such weight as the trier of facts deems them entitled.
Gross & Welch, of Omaha, and Harold A. Prince, of Grand Island for appellants.
Clark J. Mingus, of Ravenna, and B. J. Cunningham and A. J. Luebs both of Grand Island, for appellee.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and POLLOCK, District Judge.
Plaintiff brought this action to recover for personal injury and property damage resulting from a collision on September 13, 1944, between his Ford farm truck traveling east, and defendant's Chevrolet gravel truck traveling north, at an intersection of two ordinary graveled country roads near the Grand Island Ordance Plant. Upon trial to a jury, plaintiff was awarded a verdict for $1700.00, upon which judgment was entered. Defendant's motion for new trial was overruled, and it appealed to this court, assigning as error substantially that the trial court erroneously overruled defendant's motion for a directed verdict made at the conclusion of plaintiff's case which was renewed at the conclusion of all the evidence, and erred in submitting the case to the jury. It is argued that plaintiff's negligence was more than slight as a matter of law, and that there was no evidence of any negligence on the part of defendant; therefore, the evidence was insufficient to support a verdict and judgment. It is also separately assigned that the trial court erred in giving instructions numbered 1, 3, and 8. We find that defendant's assignments of error cannot be sustained.
The theory of plaintiff's case, as reflected in his petition, was that defendant's driver was negligent in that he failed to keep a proper lookout, failed to have defendant's truck under control, failed to stop in time to avoid a collision, negligently drove his truck into the intersection after plaintiff had lawfully entered the same, and drove at an excessive rate of speed, which negligence was the proximate cause of the accident. Defendant, for answer, admitted that an accident occurred, at or about the time and place claimed by plaintiff, but denied that defendant was negligent and alleged that the accident and resulting injuries and damages, if any, were due solely to plaintiff's own contributory negligence, which was more than slight. Plaintiff's reply, in substance, denied that there was any contributory negligence on his part.
Whether the trial court should have directed a verdict for defendant depends primarily upon direct evidence together with physical facts and circumstances about which there is no substantial dispute, to which we must apply well-settled principles of law. It has long been the rule, only recently reaffirmed by this court, that 'A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.' Halliday v. Raymond, 147 Neb. 179, 22 N.W.2d 614, 615.
The latter case also approved and applied the rule that 'Where different minds may draw different conclusion from the evidence in regard to negligence, the question should be submitted to the jury, but where the evidence shows beyond 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.' In that connection, however, the rule is 'If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appear in evidence adduced for the plaintiff.' Roberts v. Carlson, 142 Neb. 851, 8 N.W.2d 175, 176.
It is the law generally that negligence is never presumed, and cannot be inferred from the mere fact that an accident happened. The burden of proof is upon the plaintiff to show, by a preponderance of the evidence, that an accident was proximately caused by some negligent act charged, directly attributable to defendant, and to support a verdict, negligence must be established, either by direct proof or by physical facts or circumstances of sufficient weight from which a reasonable inference of the same may arise. Britton v. Samuelson, 147 Neb. 318, 23 N.W.2d 267.
We have recently reaffirmed that 'Circumstantial evidence can be sufficient to sustain a verdict depending solely thereon for support if the circumstances proved by the evidence are of such a nature and so related to each other that the conclusion reached is the only one that can fairly and reasonably be drawn therefrom.' Halliday v. Raymond, supra [147 Neb. 179, 22 N.W.2d 616]. See, also, Anderson v. Interstate Transit Lines, 129 Neb. 612, 262 N.W. 445. However that may be, we are not required to rely solely upon the latter rule in the case at bar, because from the record before us it appears that plaintiff adduced not only direct proof, but also physical facts and circumstances of sufficient weight from which negligence of the driver of defendant's truck as charged might reasonably be inferred, which distinguishes Britton v. Samuelson, supra, and Bergendahl v. Rabeler, 133 Neb. 699, 276 N.W. 673, relied upon by defendant, to support his contention that the evidence is insufficient to support the verdict and judgment. Rather the case comes within the rule that 'Where the facts are disputed, it is solely the province of the jury to determine the same; and, whether the facts be disputed or undisputed, if different minds might honestly draw different conclusions from them, the case is properly left to the jury.' Ogden v. Sovereign Camp, Woodmen of the World, on rehearing, 78 Neb. 806, 113 N.W. 524.
Defendant argues that the two trucks arrived at the intersection at approximately the same time. Therefore, defendant coming from the right had the right of way and was in a favored position from which he concludes that Bergendahl v. Rabeler, supra, and Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596, 597, govern the case, requiring the court to find that plaintiff was guilty of negligence more than slight, as a matter of law. In the latter case, it was held: 'If the driver of an automobile entering an intersection looks for approaching vehicles but fails to see one which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law.' On the other hand, plaintiff therein had the right of way in the absence of evidence that defendant entered the intersection first, and being in a favored position prevailed by reason of the rule that 'When the driver of an automobile entering an intersection looks but fails to see an approaching automobile not shown to be in a favored position, the presumption is that the driver of the approaching automobile will respect his right of way, and...
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