Mundy v. Davis

• Decision Date: 14 June 1951
• Docket Number: No. 32915,32915
• Citation: 154 Neb. 423,48 N.W.2d 394
• Parties: MUNDY v. DAVIS.
• Court: Nebraska Supreme Court

Page 394

48 N.W.2d 394

154 Neb. 423

MUNDY v. DAVIS.

No. 32915.

Supreme Court of Nebraska.

June 14, 1951.

Syllabus by the Court

1. Negligence is a failure to do what reasonable and prudent persons would ordinarily have done under the circumstances and situation, or doing what reasonable and prudent persons under the existing circumstances would not have done.

2. Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.

3. If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect.

4. It is the duty of an automobile driver, in driving his car, to keep such a lookout ahead that he will see an obstruction or a vehicle as soon as it is illuminated by his lights, and it is his duty to have his car under such control, under the driving conditions then existing, that he can stop it in time to avoid a collision with an object in the area lighted by his lights.

5. The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur.

6. Such a violation is evidence of negligence, which the jury is entitled to consider upon the question whether actionable negligence existed.

Rosewater, Mecham, Stoehr, Moore & Mecham, Omaha, for appellant.

Wear & Boland, R. E. McCormack, and John J. Powers, all of Omaha, for appellee.

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

WENKE, Justice.

John Mundy brought this action in the district court for Douglas County against Titus E. Davis. The purpose of the action is to recover for damages resulting from injuries allegedly caused by the negligent conduct of defendant. Plaintiff recovered a verdict. The court entered judgment thereon. Defendant thereupon filed a motion for new trial and for judgment notwithstanding the verdict. These motions were both overruled. Defendant appeals from the overruling thereof.

Appellant contends that the trial court should have either sustained his motion for a directed verdict or for a judgment notwithstanding the verdict. He bases this contention on the ground that appellee, as a matter of law, was guilty of conduct contributing to the accident that was more than slight negligence and that, under our comparative negligence doctrine, this would defeat any right to recover that he might otherwise have. We do not think the factual situation here presented, which is hereinafter set forth, sustains this contention. See Brenning v. Remington, 136 Neb. 883, 287 N.W. 776; Grantham v. Watson Bros. Transportation Co., on rehearing, 142 Neb. 367, 9 N.W.2d 157.

Appellant further contends that if we should decide that the question of whether or not appellee's conduct was such that it would prevent his recovery under the comparative negligence doctrine was a question of fact for the jury rather than one of law for the court that in such event the trial court erred in not granting him a new trial for the reason that such issue was not properly submitted.

"Negligence is a failure to do what reasonable and prudent persons would ordinarily have done under the circumstances and situation, or doing what reasonable and prudent persons under the existing circumstances would not have done.' Omaha Street R. Co. v. Craig, 39 Neb. 601, 5, N.W. 209.' Eaton v. Merritt, 135 Neb. 363, 281 N.W. 620, 621. See Bixby v. Ayers, 139 Neb. 652, 298 N.W. 533.

'Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.' 45 C.J., Negligence, § 501, p. 942, 65 C.J.S., Negligence, § 116. This definition has been cited with approval by this court in Kovar v. Beckius, 133 Neb. 487, 275 N.W. 670; Eaton v. Merritt, supra; and Frazier v. Anderson, 143 Neb. 905, 11 N.W.2d 764.

The trial court submitted this issue by the following instruction: 'Negligence is not presumed but must be proved. The defendant having alleged in his answer that the proximate cause of the accident was negligence on the part of the plaintiff, the burden is upon the defendant to establish by a preponderance of the evidence any such negligence of the plaintiff and that the same was the proximate cause of, or proximately a contributing cause to, the accident.'

We have recently stated:

'When 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 insofar as the same may appear in evidence adduced for the plaintiff, and the trial court should so instruct the jury.' Johnson v. Griepenstroh, 150 Neb. 126, 33 N.W.2d 549, 550. See Plumb v. Burnham, 151 Neb. 129, 36 N.W.2d 612.

"If the defendant pleads that the plaintiff was guilty of contributory negligence, or that the accident resulted solely from his negligence, the burden is upon the defendant to prove those defenses, and does not shift during the trial of the case, but he should receive the benefit of the plaintiff's evidence tending to prove those issues.' McGahey v. Citizens Ry. Co., 88 Neb. 218, 129 N.W. 293.' Spaulding v. Howard, 148 Neb. 496, 27 N.W.2d 832, 836.

A review of our holdings on this question indicates the following to be the applicable rule: If the defendant pleads that the plaintiff was guilty of contributory negligence the burden is upon him to prove that defense and this burden does not shift during the trial of the case. However, if the evidence adduced by the plaintiff tends to prove that issue the defendant is entitled to receive the benefit thereof and the court must instruct the jury to that effect. See, Durrell v. Johnson, 31 Neb. 796, 48 N.W. 890; Rapp v. Sarpy County, on rehearing, 71 Neb. 385, 102 N.W. 242; City of Beatrice v. Forbes, 74 Neb. 125, 103 N.W. 1069; Cook v. Chicago, R. I. & P. Ry. Co., 78 Neb. 64, 110 N.W. 718; Vertrees v. Gage County, 81 Neb. 213, 115 N.W. 863; McCulley v. Anderson, 119 Neb. 105, 227 N.W. 321; Schrage v. Miller, 123 Neb. 266, 242 N.W. 649; Cotten v. Stolley, 124 Neb. 855, 248 N.W. 384; Pinches v. Village of Dickens, 127 Neb. 239, 254 N.W. 877; Carlson v. Roberts, 133 Neb. 166, 274 N.W. 473; Nichols v. Havlat, 140 Neb. 723, 1 N.W.2d 829, on rehearing, 142 Neb. 534, 7 N.W.2d 84; Roberts v. Carlson, 142 Neb. 851, 8 N.W.2d 175; Frazier v. Anderson, 143 Neb. 905, 11 N.W.2d 764; Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N.W.2d 412; Spaulding v. Howard, 148 Neb. 496, 27 N.W.2d 832; Elliott v. Swift & Co., 151 Neb. 787, 39 N.W.2d 617; Anthony v. City of Lincoln, 152 Neb. 320, 41 N.W.2d 147.

The quoted instruction given by the trial court did not instruct the jury to that effect. This requires a consideration of the evidence which appellee adduced for if it contains nothing from which it can be said that he appears to have been guilty of contributory negligence then it was not error to fail to do so.

Appellee adduced evidence to the following effect: That the accident happened on Sunday, February 29, 1948, at about 10 p. m.; that it happened on U. S. Highway No. 6 at a point between 2 1/2 and 3 miles from Gretna going toward Omaha; that it happened where the road runs north and south and slopes gently down grade to the north; that at the point of the accident the surface of the highway was concrete, 20 feet wide, with 6 foot shoulders; that at the time of the accident a very heavy snow was falling but no wind was blowing; that immediately preceding the snow a mist had fallen and frozen on the concrete surface of the highway causing it to become icy and very slippery; that about 1 to 2 inches of snow had fallen and covered the icy concrete to that depth; that as he approached the place of the accident he observed three or possibly four cars stopped on the right side of the highway on the paved surface thereof; that he did not know why they were stopped there; that the lights of these cars, both front and rear, were burning; that he brought the car he was driving to a stop at a point about 10 feet from the rear of the last of these parked cars; that the car he was driving, which was a 1947 Chevrolet sedan, belonged to his brother; that there was room to the left, or west side, of the parked cars sufficient to have permitted him to pass and proceed to the north; that he stopped his car on the concrete or paved surface of the highway on the right side thereof although there was room to park on the shoulder; that he kept the lights of his car, both front and rear, burning; that he and his wife, who was riding with him, remained seated in the car; that shortly after they had stopped the rear of the car was bumped; that he then got out of the car, getting out on the left side, and started toward the rear thereof; that as he reached a point opposite the left rear fender of his car he observed the appellant's car approaching from the south some 500 feet away; that it was traveling on the east or right-hand side of the road; that he estimated it was approaching at the rate of 50 miles an hour; that he continued to the rear...