Nichols v. Havlat

• Decision Date: 18 December 1942
• Docket Number: 31188.
• Parties: NICHOLS v. HAVLAT.
• Court: Nebraska Supreme Court

7 N.W.2d 84

142 Neb. 534

NICHOLS v. HAVLAT.

No. 31188.

Supreme Court of Nebraska

December 18, 1942

Syllabus by the Court.

1. Voluntary intoxication does not relieve one from contributory negligence, or serve to relax the requirement which is imposed upon a person to exercise due care for his own safety.

2. The fact that a person when injured was intoxicated is not of itself contributory negligence, but it is a circumstance to be considered by the jury in determining whether his intoxication contributed to his injury.

3. In a personal injury action, where there is evidence tending to show contributory negligence on the part of plaintiff's decedent, that question should be submitted to the jury, under the provisions of section 20-1151, Comp.St.1929.

EBERLY ROSE and MESSMORE, JJ., dissenting.

Brown Crossman, West, Barton & Fitch, of Omaha, for appellant.

Boyle & Boyle, of Omaha, for appellee. L. R. Doyle, of Lincoln amicus curiae.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

PAINE Justice.

This is an action by Katherine Nichols, widow, as special administratrix of the estate of George Nichols, deceased, against Lumir Havlat, for the death of George Nichols, who was killed when struck by the defendant's truck. The first time the case was tried to a jury in the district court they were unable to agree, and were discharged. The second trial occurred in October, 1940 and the jury returned a verdict for $7,000 in favor of the plaintiff, for which amount a judgment was entered. Defendant appealed.

This case was first argued to this court on September 19, 1941, and the opinion is found in 140 Neb. 723, 1 N.W.2d 829, which opinion was released January 9, 1942.

A very full and complete statement of the case and of the facts, including extensive quotations from the evidence, is set out in that first opinion, to which reference is hereby made. Before discussing the law, a brief synopsis of facts which are practically undisputed will be set out.

George Nichols, the husband of the plaintiff, was 63 years old when he was killed on April 17, 1940. He was a common laborer at the Armour packing house, but had been on a vacation for a few days. He lived as 3628 Y. Street, South Omaha, which was about two and a half miles from the place where he was killed. He left home that afternoon about 3 o'clock, his family expecting that he would return for supper. When he did not return, the wife sent one of the children down three or four blocks from home to a couple of taverns to inquire if he was there, but he was not. His family could give no reason why he was out at the place where he was killed, on Q street near Sixty-first.

The defendant Havlat owned and operated a large farm Chevrolet truck, with a standard trailer attached, the two weighing about 31,000 pounds, and the truck was going west. It was loaded with 375 bushels of corn, which he was taking to Dorchester, where he lived. Havlat, the owner of the truck, was riding in it, and was sound asleep in the cab until after the accident, his truck being driven by his employee, Lumir Belohlavy.

The accident happened about 10 p. m., west of the city limits of Omaha, on an arterial highway known as Q street, the main highway into South Omaha from the west. The pavement is 18 feet in width, with a 10-foot cindered shoulder on each side of the brick. There was considerable traffic at this point on the night of the accident. The lights of oncoming cars blinded the driver of the truck, and he did not see Nichols until he was just a few feet ahead of him and directly in front. The driver made a sudden turn, and upset the truck and trailer in the ditch on the left side of the highway, but did not avoid hitting Nichols, who was killed.

Russell Meacham, a bus driver, driving a passenger bus east from Ralston to South Omaha over Q street, said that he saw Nichols standing on the highway about 125 feet west of the intersection of Sixtieth street and Q street, and as he turned out and passed him he was urinating approximately in the middle of the road. He was at a staggering stand-still, sort of maneuvering around, facing southeast. The last time Meacham saw him he was going towards the north side of the road. Within four or five seconds the bus stopped at Sixtieth and Q to take on a passenger, and the defendant's truck and trailer passed, and looking in his rear vision mirror he saw the tail lights on the truck zigzag and turn a somersault. He immediately backed his bus up a way and ran to the body of the deceased, which was on the highway. The truck was upside down in the ditch on the south side of the road. He remained at the place of the accident over 15 minutes. Nichols wore dark clothing, and there were no street lights along Q street at this place.

William Malverd testified that he was waiting for the bus at the corner of Sixtieth and Q. He first saw Nichols east of Sixtieth street on Q street, walking west towards him. It was a dark night.

"A. The only time I would see him was when there was a car coming from behind him. ***

"Q. And what did he do then? *** A. Well, he was off and on to the north side of the pavement.

"Q. And describe to the jury what you mean by that? A. Well, I would say he was staggering in a way. ***

"Q. Now, where was he on the pavement and where was he off the pavement, as you have stated? A. You mean what part of the block?

"Q. Yes, that's right. A. Well, it was a short distance east of 60th.

"Q. And did you see any cars pass Mr. Nichols east of 60th? A. Yes, sir.

"Q. And what took place, just what did you see when these cars were passing him? A. Well, one in particular, I would say, skidded about ten yards and came to a stop. *** "Q. What did Nichols do with reference to these cars? A. Well, he said something to them, but I didn't really hear, I couldn't definitely say what he said. ***

"Q. How far were you from Mr. Nichols when he crossed 60th street? A. About the width of the pavement.

"Q. And about how far would that be? A. About twenty feet.

"Q. And tell the jury just what he did then as you saw it, describe his condition? *** A. Well, he stopped and looked at me, and, as I said before, he was off and on the pavement as he walked down.

"Q. Did he go onto the north shoulder and then back onto the pavement? A. Yes, sir.

"Q. Well, describe to the jury just what you observed as to his condition? *** A. I saw him staggering off and on the pavement. ***

"Q. And describe to the jury what he was doing with reference to going down that highway up to the time you saw the bus pass him? A. Well, as I said before, he was off and on the pavement, and was staggering, and just as the bus was coming up, he stopped in the north half of the pavement and was urinating, and as the bus passed him, well, that's the last I saw of him."

The witness testified that after Nichols was killed he went down there, and his legs and hips were on the pavement and his head and the top part of his body were over on the north shoulder.

An examination of the pleadings shows that the sixth paragraph of the amended answer reads as follows:

"Defendant further alleges that at the time of the collision between this defendant's truck and the deceased, the deceased was in an intoxicated condition, had been staggering around on the road in the presence of other vehicles and that at the precise time of the collision between this defendant's truck and the decedent, the decedent was urinating on the pavement and was so intoxicated that he was staggering from place to place on the pavement, which circumstances made it impossible for this defendant's driver to have avoided a collision with the plaintiff's decedent.

"Defendant further alleges that the gross negligence of the plaintiff's decedent, as above set forth, was the sole and proximate cause of the injuries and death of plaintiff's decedent and that such gross negligence of plaintiff's decedent at said time and place is and was sufficient to bar any recovery herein to the plaintiff from this defendant."

Further, that instruction No. 1 tendered by the defendant and refused by the court reads as follows: "You are instructed that if you find from the evidence that the decedent George Nichols was under the influence of intoxicants or was intoxicated at the time of the collision and that said intoxication prevented him from exercising care for his own safety and protection and that he did not use ordinary care, then his failure to use such care contributed directly to his injury and your verdict will be for the defendant."

The plaintiff's amended reply is a general denial.

However, all question of the decedent's negligence was withdrawn from the jury, even though it was in the pleading, and evidence relating to it covered many pages in the bill of exceptions. The trial judge, instead of beginning his instructions with a brief synopsis of the petition, amended answer and amended reply, to set out the claims made by each party as the reason why each should prevail, gave as instruction No. 1:

"In a case of this kind, when the defendant alleges that the plaintiff's decedent was guilty of contributory negligence, the burden is upon the defendant to establish such defense by a preponderance of the evidence.

"You are instructed, as a matter of law, that the defendant has failed to establish his defense of contributory negligence, and such defense is withdrawn from your consideration. You are further instructed that the defendant's own testimony in this case makes him liable, as a matter of law, under the rules laid down in cases of this kind by the supreme court of the state of Nebraska. Therefore, you are instructed that the defendant is liable to the plaintiff...