Mullally v. Haslam
| Decision Date | 14 October 1921 |
| Docket Number | 21689 |
| Citation | 184 N.W. 910,106 Neb. 860 |
| Parties | MICHAEL MULLALLY, APPELLEE, v. GEORGE HASLAM, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Courtright Sidner, Lee & Jones and Kennedy, Holland, DeLacy & McLaughlin, for appellant.
J. E Daly and J. C. Cook, contra.
Heard before MORRISSEY, C.J., ROSE and FLANSBURG, JJ., DICKSON and TROUP, District Judges.
This case was begun in the district court for Dodge county to recover damages. The plaintiff alleged that the defendant negligently and carelessly ran into and collided with the coal wagon in which he was riding, thereby permanently injuring him. A trial was had to a jury, which resulted in a verdict for plaintiff for $ 6,000, upon which judgment was entered, and defendant appeals to this court.
It appears that plaintiff was assisting his son in hauling coal to the electric light plant situated on the west side of Main street in the city of Fremont, the son doing the hauling and unloading, and the father loading the wagons from the cars at the railroad track. Access to the light plant was by an alley running east and west and to the south and leading to and from Main street. After delivering the last load of coal, which was about midnight, the plaintiff and his son started for home, traveling the alley from the light plant to Main street, where they turned south along the west side. At this time the defendant was driving to the north on Main street in his automobile, and, at a point where the team and wagon was turned into Main street, the defendant's car struck the tongue of the wagon, knocking down one or both horses, and throwing the plaintiff down in the wagon, injuring him.
Plaintiff predicates his cause of action upon a violation by defendant of certain ordinances of the city of Fremont, as well as the laws of the state. It is charged by plaintiff in his petition that the defendant negligently and carelessly, and in violation of the ordinances and the laws of the state, drove his car along the west side of Main street at a high and dangerous rate of speed, and failed to keep a vigilant watch ahead for other vehicles which were entering upon the street, and failed to stop or attempt to stop or check the speed of his car in the shortest time and space possible when the defendant saw, or could by the exercise of ordinary care, have seen the team and wagon in time to stop his car and avoid the collision.
The ordinance referred to in the petition and offered in evidence contains many provisions that are not material in the consideration of this case, and only those that bear upon the issues will be noticed. The ordinance provides that vehicles shall be driven in a careful manner, with due regard for the safety and convenience of other vehicles; that vehicles shall keep on the right of the center of the street; that vehicles meeting shall pass to the right; that drivers of motor vehicles shall have their cars under control; that no vehicle shall be operated at a greater rate of speed than is reasonable or proper, having regard to the traffic and use of the highway, or so as to endanger the life and limb of any person, or in any event at a greater rate than ten miles an hour in the congested district, and outside of the congested district no car shall be operated at a greater speed than twelve miles an hour.
Many errors are assigned, but only those presented by the appellant's brief will be considered. It is contended by the appellant in his brief that the court erred in giving instructions Nos. 1, 4, and 6, and in refusing to give instructions Nos. 1, 3, 4, and 5, requested by him; that the verdict of the jury is not supported by, and is contrary to, the evidence, and is the result of passion and prejudice. The assignments of error will be considered in the order named.
The jury are told in instruction No. 3 that the matters contained in instruction No. 1 are taken from the pleadings and are not evidence. By instruction No. 4 the jury were instructed that the burden is upon the plaintiff to prove, by a preponderance of the evidence, that the defendant was guilty of negligence in some way or ways set out in instruction No. 1, and that such negligence was the proximate cause of plaintiff's injury, if any. By instruction No. 1, the jury were instructed:
"Plaintiff claims the cause of said collision was the negligence of the defendant in operating his automobile in violation of the law and the ordinances of the city of Fremont, and in driving his machine on the wrong side of the street at a high and dangerous rate of speed."
In instruction No. 6 the court instructed the jury:
The appellant insists that the court, by these instructions (Nos. 1 and 6) submitted allegations of negligence where no evidence was introduced in support thereof, and cites many decisions of this court in support of this contention. We have no fault to find with the rule announced in these cases; they state the rule correctly. But were allegations of negligence submitted without evidence to support them? We think not. The theory of the plaintiff's case was that the defendant was negligent in driving on the wrong side of the street at a dangerous and excessive rate of speed, and his failure to have his car under control, to keep a vigilant watch ahead, and that he failed to stop or check the speed of his car after seeing the team and wagon, or, by the exercise of ordinary care, could have seen them. The evidence was confined to these issues as nearly as possible in the trial of a case. There was, however, evidence as to the lights on the defendant's car, and other matters pertaining to the car, its occupants, their places of residence, the course of travel before entering upon Main street, the purpose for which defendant was traveling this street, and many facts preceding and succeeding the collision, not directly an issue in the case or alleged as a ground for recovery. Some of these acts may have been in violation of some provision of the city ordinance or laws of the state, but no recovery thereon was sought either in the pleadings or the evidence; and, while these were not specifically eliminated by the court in its instructions to the jury, they were not presented as issues. The basis of plaintiff's cause of action was the alleged operation by defendant of his car in violation of the ordinances and the laws of the state; and, while the court's instructions did not specifically point out the particular provisions of the ordinance alleged to have been violated, yet the instructions did, in a general way, submit their violation as alleged in the petition, and the defendant cannot now complain, he having failed to ask specific instructions thereon. Olmsted v. Noll, 82 Neb. 147, 117 N.W. 102.
Again, before a reversal could be had for submitting allegations of negligence where no evidence was introduced in support thereof, it must appear that the jury were misled in their consideration of the facts of the case. Mannion v. Talboy, 76 Neb. 570, 107 N.W. 750. Instructions must be considered as a whole. A consideration of the instructions given by the court on its own motion in connection with those given at the request of the defendant leaves him without complaint.
The following instruction (No. 6) was given by the court at the request of the defendant: "You are instructed that unless you find the defendant guilty of negligence, in whole or in part, as charged in his petition, then you verdict must be for the defendant, and the burden is on the plaintiff to prove, by a preponderance of the evidence that the defendant was negligent, and that such negligence was the proximate cause of plaintiff's injury, and that pla...
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