Odom v. Willms

• Decision Date: 30 October 1964
• Docket Number: No. 35694,35694
• Parties: Delores ODOM, a minor, by and through Kenneth Odom, her natural father and next friend, appellee, v. Orville WILLMS and Gray Lines Bus Company, Inc., Appellants.
• Court: Nebraska Supreme Court

Page 140

131 N.W.2d 140

177 Neb. 699

Delores ODOM, a minor, by and through Kenneth Odom, her natural father and next friend, appellee, v. Orville WILLMS and Gray Lines Bus Company, Inc., Appellants.

No. 35694.

Supreme Court of Nebraska.

Oct. 30, 1964.

Syllabus by the Court

1. In an action for negligence the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury, or a cause which proximately contributed to it.

2. Until the driver of an automobile has notice of the presence, or likelihood, of children near his line of travel, he is bound only to the exercise of reasonable care, and has the right to assume that others will do likewise; and until he has such notice the rule is the same as respects children and adults.

3. When the evidence shows that defects in the mechanism of an automobile did not contribute to an accident and that the accident would have occurred irrespective of such defects, such defects cannot be said to be the proximate cause of the accident or a cause which proximately contributed to it.

4. Objections to question on cross-examination, which range beyond the scope of the direct exa nination, are properly sustainable on that ground.

5. The relation of carrier and passenger ordinarily terminates when the passenger alights from the bus safely on the curb.

6. While circumstances may exist that would warrant a jury in finding a duty to warn a child of obvious danagers, that question is not material to the decision of a case where there is no evidence of a failure to warn sufficient to take that question to the jury.

7. The burden of proving a cause of action or defense is not sustained by evidence from which the jury can arrive at its conclusion only by mere guess or conjecture.

8. In a case where the conclusion reached by the jury was the only one permissible under the pleadings and evidence, it is error for the trial court to set aside the verdict and grant a new trial.

Herbert E. Story, Robert C. Oberbilling, Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for appellants.

Schrempp, Lathrop & Rosenthal, Francis A. McLane, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

The plaintiff, Delores Odom, a minor, brought this action by her natural father and next triend, against the defendants Orville Willms and Gray Lines Bus Company, Inc., claiming damages for injuries sustained in an automobile accident. The jury returned a verdict for both defendants. The trial court entered an order sustaining plaintiff's motion for a new trial. Both defendants have appealed.

The accident occurred on September 4, 1959, on a county road in Douglas County designated as Highway 31, but generally referred to in the record as Q Street. The evidence shows that Q Street is an east-west road about 18 feet wide. It was paved with brick except that there was a concrete slab on each side of the road 1 foot in width. The road was level, the pavement dry, and visibility good at the time of the accident. The accident occurred between two roads which entered Q Street from the north. One was designated as Sixty-first Street, although a county road. It was a dirt-gravel road which entered but did not cross Q Street. To the east of Sixty-first Street, a distance of about 658 feet, was Sixtieth Street, also a county road, which entered and crossed Q Street. To the south of Q Street between Sixtieth and Sixty-first Streets was a cornfield. There were no public or private ways south of Q Street in this area. A few residences were located on the north saide of Q Street and three private drives entered Q Street from the north. No sidewalks or crosswalks existed on Q Street between Sixtieth and Sixty-first Streets. The plaintiff lived with her parents in the immediate area north of Q Street.

The bus company operated a bus line between Ralston and Omaha under proper authority. The certificate of authority in no way restricted the operation of the company's buses in the area here involved. On September 4, 1959, the company's bus stopped at a Ralston school where it was boarded by 15 or more school children, including plaintiff and Barbara Sedlak, all of whom were fare-paying passengers. The regular bus stop in the area was at the west edge of Sixty-first Street. The bus approached from the west, crossed Sixty-first Street without stopping and came to a stop approximately 140 feet east of the east line of Sixty-first Street. The evidence is in dispute as to where the bus stopped, but the evidence, including the physical facts existing after the accident, indicates the stated distance. The evidence shows that the bus stopped on the south edge of the pavement and let plaintiff and Barbara Sedlak out at the front door onto the 6-foot shoulder of the road. The two girls, then 8 years of age, proceeded west, plaintiff running north at the rear of the bus into the path of the Willms car approaching from the east. The bus proceeded on its way, the driver stating that he did not know at the time that an accident had occurred. The evidence shows that the bus was beginning to move when plaintiff darted into the path of the Willms car.

There is evidence by the manager of the bus lines that there were no regular stops, although the point immediately west of Sixty-first Street was generally considered a regular stop. He testified that the bus was ordinarily rerouted to pick up and discharge passengers in this area on the north side of Q Street after the Omaha public schools were opened in the fall as a protection to school children. School had taken up in Ralston 2 days before the accident, but no rerouting had been made because the Omaha schools had not reopened. He further testified that drivers were cautioned to be especially alert in loading and unloading school children, to try and watch where they cross the streets, and to be careful when they were stepping on or off a bus to avoid injury. It was stated that the safety of passengers, both school children and adult passengers, is always a topic of safety at safety meetings with the drivers. Other pertinent evidence will be discussed in connection with the particular legal points to which they have application.

At the close of plaintiff's evidence, and at the close of all the evidence, each of the defendants moved for a directed verdict. A determination of the correctness of the rulings on these motions is required before the correctness of the court's instructions, which are questioned, need be considered.

The plaintiff alleged that Willms was guilty of negligence in failing to keep a proper lookout, in operating his automobile at an excessive rate of speed, in failing to turn or stop his automobile to avoid hitting the plaintiff, and in operating his vehicle with defective brakes contrary to section 39-773, R.R.S.1943. Willms denied generally and alleged that he was not guilty of any act of negligence causing or contributing to the accident.

The evidence is undisputed that Willms approached the bus from the east on his right-hand side of the road. There is no evidence in the record in plaintiff's case-inchief as to the speed Willms was traveling when he first saw the bus, or immediately prior to the accident. He stated that he saw no one leave the bus, although he recollects some movement at the front end of the bus that might indicate that a passenger had been discharged thereform. He did not know that the two children had left the bus or that school children were riding this common carrier bus. He testified that he first knew of a child in the vicinity when plaintiff ran from behind the bus directly into the path of his automobile. He stated that plaintiff was from 6 to 8 feet from his car when he first saw her. His car struck the plaintiff and she was thrown or rolled 15 to 20 feet from the left front of his car. He stated that he immediately applied his brakes and stopped within 15 to 20 feet.

Clarence Fritz, Jr., was a witness for defendant Willms and testified that he had been following the Willms car for several blocks. He was approximately 3 car-lengths back of the Willms car when the accident occurred. He saw the bus for several hundred feet as he approached from the east. He did not see anyone leave the bus. He did not see the plaintiff until she ran out from behind the bus into the path of the Willms car. The Willms car stopped within 15 or 20 feet. He stated that he had been traveling at 25 to 30 miles per hour before the accident happened and it may be infered from the evidence that Willms was traveling at about the same speed as he approached the bus.

Mrs. Bessie Stander was an eyewitness to the accident. She stated she was in her driveway visiting with a neighbor about 150 feet to the northwest when she saw plaintiff dart out from behind the bus directly into the path of the Willms car. She stated the Willms car was not traveling too fast because it stopped quickly.

There is no evidence in conflict with the version of the facts told by these three eyewitnesses. There is no evidence that Willms failed to keep a proper lookout under the circumstances shown. There is no evidence that he had any opportunity to turn to avoid the accident.

It is contended that the evidence will sustain a finding of negligence by Willms in that he had defective brakes on his automobile in violation of section 39-773, R.R.S.1943. The evidence shows that two deputy sheriffs made tests with the Willms automobile in the evening following the accident and found that it...