Nickell v. Russell

• Decision Date: 06 January 1995
• Docket Number: No. S-93-018,S-93-018
• Citation: 247 Neb. 112,525 N.W.2d 203
• Parties: Lonnie NICKELL, Appellee, v. John RUSSELL, Individually, Appellant, and John Russell and Dennis Pestal, a Partnership, Real Name Unknown, Appellee.
• Court: Nebraska Supreme Court

Page 203

525 N.W.2d 203

247 Neb. 112

Lonnie NICKELL, Appellee, v. John RUSSELL, Individually, Appellant, and John Russell and Dennis Pestal, a Partnership, Real Name Unknown, Appellee.

No. S-93-018.

Supreme Court of Nebraska.

Jan. 6, 1995.

Syllabus by the Court

1. Directed Verdict. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom.

2. Directed Verdict: Appeal and Error. The party against whom a verdict is directed is entitled to have every controverted fact resolved in his favor and the benefit of every inference which can reasonably be drawn from the evidence.

3. Directed Verdict: Appeal and Error. An appellate court may reverse a directed verdict if evidence exists sustaining a finding for the party against whom the judgment was made.

4. Motor Vehicles: Negligence. A motorist is deemed negligent as a matter of law if he or she operates a motor vehicle in such a manner as to be unable to stop or turn aside without colliding with an object or obstruction in the motorist's path within his or her range of vision.

5. Trial: Motor Vehicles: Negligence: Juries. When the facts of a case fall within the exception to the range of vision rule, then the determination of negligence becomes a question for the jury.

6. Motor Vehicles: Negligence. An exception to the range of vision rule exists when a motorist, otherwise exercising reasonable care, does not see an object or obstruction sufficiently in advance to avoid colliding with it because it is similar in color to the road surface and relatively indiscernible.

7. Negligence: Proximate Cause. A plaintiff is contributorily negligent if (1) the plaintiff fails to protect himself or herself from injury, (2) the plaintiff's conduct concurs and cooperates with the defendant's actionable negligence, and (3) the plaintiff's conduct contributes to the plaintiff's injuries as a proximate cause.

8. Pleadings: Negligence: Jury Instructions: Appeal and Error. When the defendant pleads the affirmative defense of contributory negligence without relevant or 9. Negligence: Evidence: Proof. Negligence must be proved by direct evidence or by facts from which such negligence can reasonably be inferred.

competent evidence to support the defense, it is prejudicial error to submit the issue to a jury.

10. Negligence: Highways: Pedestrians. Generally, it is negligent to lie down on or beside a road, oblivious to the dangers of traffic.

11. Negligence: Evidence: Juries. When substantial evidence shows that the plaintiff contributed to the collision, the issue of contributory negligence should be considered by the jury.

Stephen L. Ahl and Gary L. Dolan, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellant.

David M. Geier and William A. Wieland, of Healey & Wieland Law Firm, Lincoln, for appellee Nickell.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

PER CURIAM.

This case involves an accident in which the defendant John Russell, while operating a pickup truck close to midnight on June 28, 1986, on West Princeton Road in Lancaster County, Nebraska, struck and injured the plaintiff, Lonnie Nickell. Nickell was lying down in the middle of the gravel road. Following a directed verdict as to both Russell's negligence and the absence of contributory negligence on the part of Nickell, the jury returned a verdict for Nickell in the amount of $600,000. Russell appeals, assigning as error generally the trial court's ruling that he was negligent as a matter of law and that Nickell, as a matter of law, was not negligent.

STANDARD OF REVIEW

A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994); Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993). The party against whom the verdict is directed is entitled to have every controverted fact resolved in his favor and the benefit of every inference which can reasonably be drawn from the evidence. Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994); Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993). An appellate court may reverse a directed verdict if evidence exists sustaining a finding for the party against whom the judgment was made. See, Macholan v. Wynegar, 245 Neb. 374, 513 N.W.2d 309 (1994); Marple v. Sears, Roebuck & Co., 244 Neb. 274, 505 N.W.2d 715 (1993).

FACTS

Nickell filed a petition in the district court for Lancaster County against Russell individually, and Russell and Dennis Pestal as a partnership. There is no issue on appeal as to the matter of partnership liability. Nickell alleged that on June 28, 1986, Russell failed to maintain a proper lookout and failed to keep his pickup truck under reasonable control when he ran over Nickell on West Princeton Road. As a result of Russell's alleged negligence, Nickell suffered a traumatic amputation of his right arm, a fractured right leg, a fractured pelvis, a closed head injury, abrasions, contusions, lacerations, and psychological injury. Nickell sought medical and prosthetic expenses as well as damages for pain and suffering, disability, and disfigurement.

As an affirmative defense, Russell alleged that Nickell's own negligent acts and omissions proximately caused and contributed to Nickell's injuries. Specifically, Russell alleged that Nickell lay down in the road after dark, failed to maintain a proper lookout, and knew or should have known that a motorist traveling on the road would have difficulty seeing a reclining person. Russell also alleged that Nickell was tired when he lay down, which contributed to his negligence. In addition, Russell alleged that Nickell assumed the risk of being struck by a vehicle The events of June 28 are based on testimony adduced at trial from Sgt. Paul Jacobsen of the Lancaster County sheriff's office, who investigated the accident; Nickell; and Russell, from a reading of his deposition and his live testimony at trial.

because he knew and appreciated the danger of reclining on the road while tired, that he voluntarily and deliberately exposed himself to the danger, and that his actions proximately caused his injury.

On June 28, around 10:30 p.m., Nickell, age 17, sneaked out of his parents' farmhouse. According to Nickell, he walked out of the west side of the house, then south through a milo field and on across West Princeton Road. He stood in the south ditch waiting for two friends to pick him up. Nickell waited "maybe 10 or 15 minutes," then became tired of standing and sat down on the side of the road where he noticed that the gravel "sloped up ... like a pillow." Thus, according to Nickell's statement to Jacobsen, Nickell then lay down on the south shoulder of the road in such a position that he could observe his parents' driveway and the road.

Jacobsen testified that he had the impression that Nickell lay "with his feet facing towards the center of the road or middle of the road, basically pointing in a general direction of his residence, which was north and east, assuming that he was using the gravel pile for a pillow." According to Jacobsen, Nickell had a quarter-mile view of westbound traffic.

Nickell testified that he lay facing east with his feet "partially going to the south ... They might have been in the ditch there on the south side of the gravel pile." Nickell also testified that he pointed his legs more to the east than to the south. Nickell emphasized that he did not lie down on the road because he "thought about" traffic from the west "just before I can't remember nothing." The next event Nickell recalled after lying down on the south shoulder of West Princeton Road was waking up in the hospital.

According to his deposition, on the day of the accident, Russell had worked in his dental clinic in Beatrice until the afternoon. During the afternoon, he drove to Lincoln and had lunch with a friend, visited with a tenant, went to a movie, had dinner, and then started out to return to Beatrice at about 11 p.m. The record is clear that at no time did Russell consume alcohol.

Russell decided to take a back country route to Beatrice because he wanted to see the Hallam powerplant. He eventually drove westbound on West Princeton Road at a speed of 35 to 40 miles per hour. Jacobsen measured West Princeton Road as 30 feet in width with soft shoulders and loose gravel. The travelable portion of the road was 25 feet wide. At approximately 11:50 p.m., Russell saw an object on the road.

Russell told Jacobsen that he first observed the object when "he started up a rather long hill," but testified at trial that he observed the object while "going up the incline." During cross-examination, Russell testified that he did not intend a discrepancy between "started up" the hill and "going up" the incline. Russell was then asked:

Q. Sure. You told the sheriff, "As I started up a long hill." Your first deposition you said, "Went up a long hill, went over the top and saw the object," and then we took your second deposition and said, "Okay. Which way is it? Is it what you told the sheriff that's accurate or did you drive up over the top of the long hill and then see the object?"

And then in the second deposition you said, "I think what I told the sheriff was more accurate."

A. I would agree with that.

Russell testified that when he crested the hill, he had the impression the object was either a plank, a piece of board, a rag, or hay fallen off a truck. Russell's attention was not particularly drawn to the object, which, at first, did not appear so large that he could not drive over it or around it. Russell estimated during his deposition that the object lay 30 to 40 feet from him when he first observed it....