Morse v. Gray

• Decision Date: 02 May 1958
• Docket Number: No. 34350,34350
• Citation: 166 Neb. 557,89 N.W.2d 842
• Parties: Katherine MORSE, Appellant, v. Theodore I. GRAY and Mary I. Gray, his wife, Appellees.
• Court: Nebraska Supreme Court

Page 842

89 N.W.2d 842

166 Neb. 557

Katherine MORSE, Appellant, v. Theodore I. GRAY and Mary I. Gray, his wife, Appellees.

No. 34350.

Supreme Court of Nebraska.

May 2, 1958.

Syllabus by the Court

1. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

2. In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.

3. Invitees are those who are expressly or impliedly invited as a customer to a store. The duty of the owner toward an invitee is to exercise reasonable care to keep the premises in a safe condition.

4. A possessor of land is subject to liability for personal injuries to business visitors by a natural or artificial condition thereof he knows, or by exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.

5. Negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do something which an ordinarily prudent person would have done under the same or similar circumstances.

6. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which it would not have occurred.

7. The negligence of a husband while driving an automobile with his wife as a guest is not imputable to her.

Edgerton & Powell, Aurora, for appellant.

John Dougherty, York, for appellees.

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

WENKE, Justice.

This is an appeal from the district court for Merrick County. It involves an action brought therein by Katherine Morse against Theodore I. Gray and Mary I. Gray, husband and wife, to recover damages for injuries she claims to have suffered in an accident occurring on defendants' place of business together with expenses incurred by reason thereof for doctors' services, medicines, and hospital care, loss of wages, and for damages to the car in which she was riding. The basis for plaintiff's claim is that the defendants maintained their property in a manner which she claims was negligent and which she contends was a proximate cause of the accident which resulted in her injuries.

Trial was had and, at the conclusion of plaintiff's evidence, the trial court sustained defendants' separate motions to enter an order of dismissal and thereupon dismissed plaintiff's petition. Plaintiff then filed a motion for new trial and took this appeal from the overruling thereof. The primary issue raised by the appeal is the question of whether or not appellant's evidence is sufficient to present a jury question.

The principles applicable to the foregoing question are as follows:

'A motion for directed verdict or its equivalent must, for purpose of decision thereon, be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such 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 evidence.' Davis v. Spindler, 156 Neb. 276, 56 N.W.2d 107, 108. See, also, Kepler v. Chicago, St. P., M. & O. Ry. Co., 111 Neb. 273, 196 N.W. 161.

'In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.' Krichau v. Chicago, B. & Q. R. R. Co., 150 Neb. 498, 34 N.W.2d 899. See, also, Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758.

'* * * where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.' Davis v. Spindler, supra. See, also, Herman v. Firestine, 146 Neb. 730, 21 N.W.2d 444.

'In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.' Egenberger v. National Alfalfa Dehydrating & Milling Co., 164 Neb. 704, 83 N.W.2d 523, 527. See, also, Sipprell v. Merner Motors, 164 Neb. 447, 82 N.W.2d 648.

The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured.' Bowers v. Kugler, 140 Neb. 684, 1 N.W.2d 299, 300. See, also, Wolcott v. Drake, 162 Neb. 56, 75 N.W.2d 107.

'Negligence is not presumed; the mere happening of an accident does not prove negligence.' Bowers v. Kugler, supra. See, also, Wolcott v. Drake, supra.

On Tuesday, July 10, 1956, the appellees were operating a Dairy Queen business in Central City, Nebraska, for the purpose of selling and dispensing ice cream and kindred products to the public. The appellees' place of business was just north of and adjacent to U. S. Highway No. 30 with a north-south street immediately to the east thereof. Between 10:30 and 10:45 p.m. of that day appellant and her husband, Franklin Morse, stopped at this Dairy Queen in their car for the purpose of and did buy malted milks, one for each of them. They entered the appellees' place of business from the east, on a driveway provided for that purpose, and parked their car at the southeast corner of the Dairy Queen building. It was parked, facing west, about 3 feet east of the sidewalk on the east side of the building and in an area provided for that purpose. The building in which the Dairy Queen business was being operated faces south toward highway No. 30 and had two service windows in the south side thereof. There is a cement sidewalk, 3 feet wide, along and immediately adjacent to the east, north, and west sides of the building and one on the south side thereof which extends out to a sidewalk running along the street or highway immediately to the south. There were round posts, varying between 24 and 34 inches in height, placed at each corner of the building just outside of the 3-foot cement sidewalk but immediately adjacent thereto. They were put in to protect the building from the cars of customers. After the car, in which appellant was riding and which her husband was driving, had parked, both of them got out on their respective sides. The husband went to the east service window to buy the malts while appellant went around the building, on the sidewalks hereinbefore referred to, to find a fountain in order to get a drink of water, which she did. She then joined her husband at the service window and, when he received the malts from a woman attendant, he gave her one of them and kept the other. They then returned to the car to consume them, appellant going around the back of the car to get in on her side. The husband finished his malt. He then started the car, turned on the lights, backed up some 5 feet, and started forward, turning his wheels to the left in order to go south onto highway No. 30. After he had proceeded forward about 7 feet the car suddenly hit something and came to a direct stop, killing the motor. As a result appellant was apparently thrown against the windshield and injured. The appellant's husband got out and discovered he had run into a post located at the southeast corner of the building. He got the bumper, which had come to rest on top of the post, off of it. He then got into the car and backed it up and proceeded to drive to their home some 7 miles west of Aurora, Nebraska.

As to the duty appellees owed appellant, we held in Haley v. Deer, 135 Neb. 459, 282 N.W. 389, 390: 'Invitees are those who are expressly or impliedly invited, as a customer to a store; * * *. The duty of the owner toward an invitee is to exercise reasonable care to keep the premises in a safe condition, * * *.' In regard thereto we said in Haley v. Deer, supra, in discussing the case of Dowling v. MacLean Drug Co., 248 Ill.App. 270, that: 'The law does not charge one with anticipating dangerous and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers.' See, also, 7A Blashfield, Encyclopedia of Automobile Law and Practice (Perm.Ed.), s. 5071, p. 609; Girard v. Auto Specialities Athletic Ass'n, 300 Mich. 272, 1 N.W.2d 538; Siegel v. Detroit City Ice & Fuel Co., 324 Mich. 205, 36 N.W.2d 719; Bennett v. Louisville & Nashville R. R. Co., 102 U.S. 577, 26 L.Ed. 235; Palmer v. Boston Penny Sav. Bank, 301 Mass. 540, 17 N.E.2d 899, 120 A.L.R. 633; Sipprell v. Merner Motors, supra. As held in Goodman v. Theatre Parking, Inc., 286 Mich. 80, 281 N.W. 545: 'A possessor of land is subject to liability for personal injuries to business visitors by a natural or artificial condition thereon if he knows, or by exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.' See, also, Siegel v. Detroit City Ice & Fuel Co., supra. [324 Mich. 205, 36 N.W.2d 722.]

Appellant contends that the appellees, in connecton with their Dairy Queen business, negligently maintained a dark colored post at the southeast corner of the building used for that purpose, which extended at a low angle out over the driving area provided for customers,...