Nickal v. Phinney, 43008
| Decision Date | 07 November 1980 |
| Docket Number | No. 43008,43008 |
| Citation | 207 Neb. 281,298 N.W.2d 360 |
| Parties | Terry L. NICKAL, Appellant, v. Daniel L. PHINNEY, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Comparative Negligence: Damages: Juries. In a case where, under the law and facts, the submission of the issue of contributory negligence and a comparison thereof with negligence of the opposing party to ascertain what damages, if any, shall be allowed, is proper, the determination of the amount of the damages is for the jury.
2. Expert Witnesses: Evidence. For a qualified expert to give an estimate of a minimum rate of speed, all necessary factors needed to suggest a reasonably accurate opinion should be supported by the evidence.
Dennis M. Coll and John W. Ballew, Jr., of Raymond, Olsen & Coll, P. C., Scottsbluff, for appellant.
Holtorf, Kovarik, Nuttleman & Ellison, P. C., Gering, for appellee.
Heard before BOSLAUGH and WHITE, JJ., and COLWELL, RIST, and HOWARD, District Judges.
Plaintiff appeals from a verdict and judgment in his favor of $12,613.97, assigning as error that the verdict is inadequate and unresponsive and that the trial court erred in allowing expert testimony as to the speed of plaintiff's motorcycle at the time it struck defendant's pickup truck, which was turning left across plaintiff's path. In issue was the contributory negligence of plaintiff, the submission of which defense to the jury is not complained of.
A neurosurgeon who examined the plaintiff shortly before trial testified that, in his opinion, based upon electroencephalograms, the last of which showed a normal reading, plaintiff had sustained a contusion of the brain, and had a history consistent with post-traumatic seizures, commonly called epilepsy by laymen; that in most patients this disorder can be controlled by medication; that a personality change in plaintiff for such an injury would not be unexpected; and that he believed plaintiff to remain at some risk for later seizures. He had had no seizures for a year before the examination. An orthopedic surgeon who also examined the plaintiff testified that plaintiff's right hand was injured with the result that the long finger is deformed, making it difficult to pick up very small objects and creating a slight difficulty in making a fist. Plaintiff also sustained a fracture of the jaw, not recognized during the original hospitalization. The jaw was realigned by resection on both sides and wired shut for 21/2 months. In this connection, there was testimony that plaintiff's jaw was knocked out of line in a fight while it was still wired shut and had to be realigned with a rubber mallet. Injuries to plaintiff's legs left scars on the right thigh and left leg and a long scar in the left groin. In the pelvis, comminuted fractures occurred on the left side, and probably on the right side also, which, though well healed, appear to have distorted the pelvis slightly through narrowing. At the time of the trial, plaintiff was taking medication three times daily and the neurosurgeon testified that he would not recommend decreasing the dosage until after a seizure-free period of 2 years.
Plaintiff testified that, since the accident, he has had difficulty controlling his temper with his wife, though not with his little boy; that he cannot work with tools and favors his left hand; that he lacks coordination to resume racquetball and handball play; and can lift only half the weight he could before the collision.
At the time of the accident, plaintiff was employed as a truckdriver, earning $4.25 an hour, sometimes working 80 to 110 hours a week. He was unable to return to work for a year. At the time of the trial, he was working for the gas company, earning $6.23 per hour. Medical expenses were claimed in the amount of $12,613.97, which was the amount of the verdict. (Defendant points out that the actual medical expense occasioned by the accident should be somewhat less because medical attention to the jaw after plaintiff's fight was included in the bills.)
It is argued that the verdict, at or near the amount of the medical expenses, is an impossible resolution by the jury if it followed the comparative negligence instruction, and that the verdict is clearly inadequate. The...
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Vacanti v. Master Electronics Corp.
...injury was proximately caused by the incident and what portion of the medical bills was reasonably required. See, Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980) (jury is not obliged to accept undisputed testimony of plaintiff and his doctor as to the full extent of the claimed damag......
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State v. Miller
...of the Rules of Evidence, opinions as to vehicular rates of speed have been elicited in two other cases before us. In Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980), a licensed professional engineer with a degree in mechanical engineering and experience in accident reconstruction wa......
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Tank v. Peterson
...The apparent competency of the expert would merely aggravate the error. Id. at 539, 126 N.W.2d at 692. Accord Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980). Expert testimony is permitted by Neb.Rev.Stat. §§ 27-702 and 27-703 (Reissue 1979). "However, these rules do not permit eithe......
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Dutton v. Travis
...247 Neb. 23, 524 N.W.2d 567 (1994); Stack v. Sobczak, 243 Neb. 78, 497 N.W.2d 374 (1993) (White, J., dissenting); Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980); Burney v. Ehlers, 185 Neb. 51, 173 N.W.2d 398 (1970). Moreover, it has refused to adopt a rule that contributory negligen......