Owen v. Moore

• Decision Date: 14 March 1958
• Docket Number: No. 34299,34299
• Parties: William OWEN, Administrator of the Estate of Mary Owen, deceased, Appellee, v. Robert MOORE, Appellant.
• Court: Nebraska Supreme Court

Page 759

88 N.W.2d 759

166 Neb. 226

William OWEN, Administrator of the Estate of Mary Owen, deceased, Appellee, v. Robert MOORE, Appellant.

No. 34299.

Supreme Court of Nebraska.

March 14, 1958.

Syllabus by the Court

1. If the trial court gives reasons for the granting of a new trial, the duty rests upon the appellant to present those reasons and in appropriate manner support his contentions that those reasons are not sustainable from the record and applicable rules of law. The appellee then has the duty, if he desires, of meeting those contentions. The appellee also has the right to point out and submit additional reasons to sustain the trial court's judgment.

2. A motion for new trial is a statutory remedy, and a new trial can be granted by a court of law only upon the grounds, or some of them, provided by statute.

3. Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.

4. It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charges or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case. Section 25-1111, R.R.S.1943.

5. No oral explanation of any instruction authorized by sections 25-1111 to 25-1114, R.R.S.1943, shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions, given to the jury by the court and not reduced to writing, as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein. Section 25-1115, R.R.S.1943.

6. An 'unavoidable accident' means when an unexpected catastrophe occurs without any of the parties thereto being to blame for it.

7. The charge of the trial court to the jury should be confined to the issues presented by the pleadings and supported by evidence.

8. A driver of a vehicle about to enter a street or highway protected by stop signs must stop as directed, look in both directions, and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be obviously dangerous for him to proceed across the intersection.

9. It is the driver's duty, when crossing a protected street or highway, to look both to right and left; and if a vehicle is approaching on the main or arterial street or highway, it is his duty to wait until such vehicle has passed, unless a prudent person would have reasonable ground to believe that such other vehicle proceeding at a lawful speed is so far distant from the intersection that he could safely cross in advance thereof.

10. The duties and obligations which attend a motorist when he approaches a stop sign erected pursuant to city ordinance are the same as those which attend when he approaches one erected pursuant to statute or statutory rules of the road.

11. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleadings and evidence, and a failure to do so is prejudicial.

12. While a municipal court may take notice of a city ordinance, proof of its existence is ordinarily required in courts of general jurisdiction.

13. The negligence of a parent cannot be imputed to an infant who is injured through the carelessness of another party.

14. Where the negligence of the driver of a vehicle in which plaintiff is riding as a passenger is the sole proximate cause of a collision in which plaintiff is injured, plaintiff cannot recover from a third person for such injury.

Theodore L. Kowalski, Omaha, for appellant.

McCormack & McCormack, A. Lee Bloomingdale, Omaha, for appellee.

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

WENKE, Justice.

This is an appeal from the district court for Douglas County. It involves a tort action brought therein by William Owen as the duly appointed, qualified, and acting administrator of the estate of Mary Owen, deceased, against Robert Moore wherein the administrator claims, as a basis for his right to recover damages, that decedent's injuries, and subsequent death, were the result of a car accident caused by the negligent conduct of defendant. Defendant answered. Therein he claims the accident, in which decedent was injured, was caused solely by the negligence of Marion Owen, the driver of the car in which decedent was riding. Trial was had and the jury's verdict was for defendant. Plaintiff filed a motion for a new trial and, from the granting thereof, defendant has perfected this appeal.

The accident, in which Mary Owen was injured, occurred sometime between 5:30 and 5:45 p.m. on Thursday, March 15, 1956, in the intersection of Farnam and Forty-fourth Streets in the city of Omaha. At the time of the accident Mary Owen, who was then 4 years of age, was riding in the front seat of a 1949 black Tudor Ford sedan which was being driven east on Farnam Street by her mother, Marion Owen. Marion Owen had driven onto Farnam Street from Saddle Creek Road, a north-south street which crosses Farnam Street a block west of Forty-fourth Street. At this same time appellant, driving a 1951 Buick Tudor sedan, was approaching Farnam Street from the north on Forty-fourth Street. He had stopped at a stop sign located at the northwest corner of the intersection. The weather was clear, the pavement dry, and visibility good. Farnam Street is paved to a width of 40 feet and ordinarily is a four-lane street with two lanes for traffic in each direction. However, at the time of the accident the north two lanes were barricaded and not being used for traffic because some utility company had dug a ditch therein between Forty-second Street and Saddle Creek Road in which to lay a pipe line. As a consequence only the two south lanes were being used for traffic, eastbound traffic using the extreme south lane and westbound traffic the normal eastbound lane for traffic just south of the center line. There were no slow or stop signs controlling the traffic on Farnam Street at the point of its intersection with Forty-fourth Street. There was an automatic traffic signal at the Saddle Creek Road intersection with Farnam Street. Farnam Street was protected from traffic coming onto it off Forty-fourth Street by stop signs.

After Marion Owen turned east onto Farnam Street she continued east thereon in the extreme south lane thereof at a speed between 20 and 25 miles an hour. At this time, due to the heavy traffic on Farnam Street to the west being confined to one lane, cars thereon were traveling bumper to bumper and partially stopped because of the traffic signal to the west at the Saddle Creek Road intersection. There was a break in the barricade on the north half of Farnam Street at the Forty-fourth Street intersection and planks had been placed across the filled ditch to permit traffic to cross at that point. After appellant had been stopped at the stop sign at the northwest corner of the intersection for sometime a car in the lane of traffic moving west, which was just east of this opening, stopped to permit appellant to proceed south. This he did, crossing the ditch on the planks. As he proceeded south the right front of his car came in contact with the left front side of the Owen car. The impact occurred in the south lane for east bound traffic on Farnam Street at a point about the center of Forty-fourth Street as it crosses Farnam Street. After the impact the appellant's car came to an immediate stop but the Owen car continued on to the southeast for a distance of some 25 to 30 feet where it ran into a large tree.

As a result of this accident Mary Owen was seriously injured, especially her left eye. Subsequently it was decided to remove her left eye in order to try and save the sight of her right eye. An operation for this purpose was being performed on March 30, 1956, when, during the course thereof, Mary Owen died.

Marion Owen also brought suit against Robert Moore because of injuries she suffered in this same accident. Since the facts as to the accident would be the same the two suits were consolidated for the purpose of trial, the verdict in each case being for the appellant (defendant). In addition to finding for the appellant the jury added to the verdict the following: 'NOT GUILTY OF NEGLIGENCE UNAVOIDABLE ACCIDENT.'

In granting a new trial the court made this statement: 'I better make this statement for the record in this case. There are two cases, William Owen, Administrator of the Estate of Mary Owen, deceased, Plaintiff, versus Robert Moore, Defendant; and Marion Owen, Plaintiff, versus Robert Moore, Defendant. The two cases were tried as one. They are carried in separate records, 478-236 and 237. After the Jury had been out awhile and had gone to lunch at 12:00 o'clock, shortly after they came back, the Bailiff told me that the Jury wanted to see me about some law that they wanted to know. The Foreman came out here and said, 'If this was an unavoidable accident, how can we bring in a verdict?' I said, 'Well, if you find as a matter of fact from the evidence that it was an unavoidable accident, then the Plaintiffs can't recover and you can't bring in a verdict except for the Defendant.' Well, that's all and they went out, and then in a few minutes they came in with a verdict for the Defendant and had written on the verdict with a pencil that it was an unavoidable accident, and the fact was that the words 'unavoidable accident' had never been mentioned during the trial by anybody.'

Under this situation the following rule applies: '* * * if the trial court gave reasons for the...