Pahl v. Sprague
| Decision Date | 27 April 1950 |
| Docket Number | Nos. 32709,32715,s. 32709 |
| Citation | 42 N.W.2d 367,152 Neb. 681 |
| Parties | PAHL v. SPRAGUE. SPRAGUE v. PAHL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When separate cases are properly consolidated for trial they ordinarily become one case, wherein one verdict and judgment dispose of the entire controversy.
2. When all of the parties to such an action file a motion for new trial or join in an application therefor which is granted by the court in general terms, the order therefor has application to all the parties and all of the issues respectively pleaded by them, and requires a new trial of the entire controversy.
3. In order to be entitled to the benefit of the special procedure of which section 25-1315.02, R.R.S. 1943, is a part, a party is required not only to timely make a motion for directed verdict but when that motion is refused to thereafter timely file a motion for judgment notwithstanding the verdict.
4. A party cannot predicate error upon a ruling which he procured to be made.
5. An order granting or denying a motion for new trial cannot be assigned as error by one who procured, invited, or condoned the making and entry of such order.
6. A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.
7. In negligence cases the trial court should sustain a motion for directed verdict or for judgment notwithstanding the verdict, only when the evidence, viewed in the light most favorable to the party against whom the motion is directed, fails to establish actionable negligence.
8. In a law action, it is error for the trial court to direct a verdict for either of the parties on an issue of fact on which the evidence is conflicting. Such issue should be submitted to the jury for its determination.
9. Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of.
10. If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence, except insofar as the same may appear in the plaintiff's evidence.
11. When a person enters an intersection of two streets or highways he is obligated to look for approaching cars and to see those within that radius which denotes the limit of danger. If he fails to see a car which is favored over him under the rules of the road, he is guilty of contributory negligence sufficient to bar a recovery as a matter of law. If he fails to see an automobile not shown to be in a favored position, the presumption is that its driver will respect his right-of-way and the question of his contributory negligence in proceeding to cross the intersection is a jury question.
12. Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury. It is only where the evidence shows beyond dispute that plaintiff's negligence is more than slight as compared with defendant's negligence, that it is proper for the trial court to instruct the jury to return a verdict for defendant or enter a judgment notwithstanding the verdict.
Pilcher & Haney, Omaha, for John E. Sprague.
Wear & Boland, Omaha, John F. MacKenzie, Omaha, T. F. Hamer, Omaha, Gross, Welch, Vinardi & Kauffman, Omaha, George B. Boland, Omaha, for Hans Pahl.
Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Hans Pahl brought an action against John Sprague to recover for personal injuries and property damages resulting from a collision of cars driven by them at the intersection of 64th and Miami Streets in Omaha. John Sprague filed a separate action against Hans Pahl to recover damages to the car driven by him resulting from the same accident.
Upon motion of John Sprague, the cases were consolidated for trial to a jury. In conformity therewith, the trial proceeded without objection as one case, upon Hans Pahl's petition as if he were plaintiff, and upon John Sprague's petition as if he were a cross-petitioning defendant. Thus, the parties will be generally designated herein by name, or as plaintiff and defendant.
After plaintiff had rested, defendant's motion for directed verdict was overruled, and, at the conclusion of all the evidence, the respective motions of both plaintiff and defendant for directed verdict were overruled. The cause was submitted to the jury, which, in its verdict, found for plaintiff and against defendant, and awarded plaintiff $300 damages.
Thereafter defendant in due time filed a motion for judgment notwithstanding the verdict, and separately filed a motion for new trial, not only upon plaintiff's petition but also upon defendant's petition theretofore treated as a cross-petition. Plaintiff also filed a motion for new trial, and thereafter orally joined with defendant in his motion for new trial. All such motions were argued and submitted on June 24, 1949, whereupon the trial court entered an order and judgment overruling defendant's motion for judgment notwithstanding the verdict, but vacating and setting aside the verdict and granting a new trial, 'plaintiff having joined in defendant's motion for new trial.' Notwithstanding, however, the trial court thereafter on August 1, 1949, entered an order and judgment in which defendant Sprague's petition was dismissed and his motion for new trial was overruled, the effect of which was not only to deny defendant a new trial theretofore granted, but also to reinstate a part of the verdict theretofore vacated and set aside, and enter a judgment notwithstanding the verdict for plaintiff and against defendant, upon his cross-petition, without any motion for judgment notwithstanding the verdict ever having been filed by plaintiff Pahl.
Although consolidated for trial upon defendant's motion, and in conformity therewith tried as one case under one set of instructions with but one verdict returned, the two purportedly separate cases were each appealed to this court by defendant, who filed two separate transcripts but only one bill of exceptions. Thus, the cases were separately briefed and argued, but they will be disposed of as one case in one opinion.
With reference to Sprague v. Pahl, appellant Sprague assigned that the trial court erred in denying him a new trial upon his petition. We sustain that contention.
In that regard, this court has heretofore established that when he cases were properly consolidated for trial they became one case, after which the parties were in no different position than they would have been had Pahl filed a petition and defendant a cross-petition in the same action, wherein one verdict and judgment would dispose of the entire controversy. Schallenberg v. Kroeger, 77 Neb. 738, 110 N.W. 664. By analogy, from the holding in such cited case, the vacating and setting aside of the single verdict rendered therein and granting a new trial in the case at bar disposed of and granted a new trial of the entire controversy.
In the absence of any motion for judgment notwithstanding the verdict filed plaintiff, the trial court had no authority or power to dismiss defendant's petition, the effect of which was to enter a judgment notwithstanding the verdict. In order to be entitled to the benefit of the special procedure, of which section 25-1315.02, R.R.S.1943, is a part, plaintiff was required not only to timely make a motion for directed verdict, but when that was refused, to thereafter timely file a motion for judgment notwithstanding the verdict. In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526; Hamilton v. Omaha & Council Bluffs St. Ry. Co., 152 Neb. 328, 41 N.W.2d 139; Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533.
Plaintiff did not comply with the statute, and, as hereinafter observed, both parties having filed motions for new trial and joined in a request for like relief in the same action, the granting thereof was binding alike upon both parties, and automatically granted a new trial of the whole case both upon plaintiff's petition and defendant's cross-petition. As stated in Star Bottling Co. v. Louisiana Purchase Exposition Co., 240 Mo. 634, 144 S.W. 776, 777, wherein both parties filed motions for new trial:
We therefore reverse the order and judgment in Sprague v. Pahl, No. 32715, and remand the cause with directions to award Sprague a new trial upon his petition as if it were a cross-petition in and consolidated with Pahl v. Sprague, No. 32709, hereinafter affirmed. Whether or not the trial court should have entered a judgment notwithstanding the verdict had plaintiff filed such a motion thereof upon the ground that Sprague was not the owner of the car for which he sought damages, we need not discuss nor decide.
With reference to Pahl v. Sprague, defendant assigned that the trial court erred: (1) In overruling defendant's motion for directed verdict and his motion for judgment notwithstanding the verdict; and (2) in the granting of a new trial. We conclude that the assignments have no merit.
The second assignment is disposed of by the well-established and elementary rule that: 'A party cannot predicate error upon a ruling which he...
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