Patterson v. Kerr
| Citation | 254 N.W. 704,127 Neb. 73 |
| Decision Date | 15 May 1934 |
| Docket Number | 28930 |
| Parties | MANLEY N. PATTERSON, APPELLEE, v. WILLIAM W. KERR, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Jefferson county: FREDERICK W MESSMORE, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where this court established a rule and it has been followed for more than thirteen years by trial courts of this state, it ought not to be changed except for reasons of grave importance.
2. An instruction, in the language of an opinion of this court construing a statute, approved indirectly and directly in numerous cases for a period of thirteen years, will not be held reversible error unless prejudicial.
3. Erroneous instruction is not reversible error, unless it is prejudicial to substantial rights of appellant.
4. Where instruction is given which is not misleading and which ordinarily would be construed by laymen to accord with the well-settled rule governing the question in issue, it does not constitute reversible error.
5. Speed of an automobile is not a matter of exclusive expert knowledge or skill, but any one with a knowledge of time and distance is a competent witness to give an estimate. The opportunity and extent of his observation goes to the weight of the testimony.
6. Under the doctrine of comparative negligence, all questions of negligence and contributory negligence are for the jury.
7. Where there is some evidence of contributory negligence, failure to submit issue to the jury is reversible error.
8. Affidavits not included in bill of exceptions will not be considered by this court.
9. Where it is apparent, from bill of exceptions itself, material evidence has been omitted, the certificate that it contains all that was considered by the court will not be taken as conclusive.
10. Where there is no proper bill of exceptions in the record, a question will not be determined which requires consideration of evidence which has not been made a part of the record.
11. Evidence as to plaintiff's disability examined and held judgment not excessive.
Appeal from District Court, Jefferson County; Messmore, Judge.
Action by Manley N. Patterson against William W. Kerr. Judgment for plaintiff, and defendant appeals, and plaintiff cross-appeals.
Affirmed.
Stewart, Stewart & Whitworth and F. L. Rain, for appellant.
Burkett, Wilson, Brown & Van Kirk and E. A. Wunder, contra.
Heard before GOSS, C. J., GOOD, EBERLY and DAY, JJ., and REDICK, District Judge.
This is an action to recover damages resulting from a collision between automobiles owned and driven by plaintiff and defendant. Defendant appeals from a judgment in favor of plaintiff for $ 6,500.
The appellant argues various assignments of error, one of which is directed to the instruction relating to the doctrine of comparative negligence. The doctrine of comparative negligence, with recovery to the plaintiff whose contributory negligence was slight and the negligence of defendant gross in comparison, with a mitigation of damages in proportion to the amount of contributory negligence attributable to plaintiff, was adopted in this state by legislative enactment in 1913. Laws 1913, ch. 124, now Comp. St. 1929, sec. 20-1151. Some confusion resulted by engrafting this doctrine on our jurisprudence by statute. Several judgments were reversed because of erroneous instructions. In 1920 this court made a careful and comprehensive examination of this subject in the case of Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N.W. 158, and held in part: "Even when plaintiff has established his right to recover under this rule, it is the duty of the jury to deduct from the amount of damage sustained such amount as his contributory negligence, if any, bears to the whole amount of damage sustained." It is noted that the language of the instruction criticized here is identical with that of the opinion in Morrison v. Scotts Bluff County. The criticism of the instruction is that it attempts to compare "contributory negligence" with "the whole amount of damage sustained." For a criticism of this instruction, see Sgroi v. Yellow Cab & Baggage Co., 124 Neb. 525, 247 N.W. 355, in which it was said: "It is clear that the comparison was to be made between the negligence of the two parties, and if the plaintiff was entitled to recover, then her recovery should be reduced in the proportion that her negligence contributed to the injury." This criticism was not necessary to a decision of the case, but it was held that, even if erroneous, the instruction was not prejudicial there, for that it related only to the measure of recovery, and there was no assignment of error that the verdict was excessive.
This instruction has a long judicial history. It was quoted in the syllabus in Bauer & Johnson Co. v. National Roofing Co., 107 Neb. 831, 187 N.W. 59, as decisive of that case. It was again quoted in the syllabus of Mitchell v. Missouri P. R. Corporation, 114 Neb. 72, 206 N.W. 12, as applicable where the controlling issues in the case are the matters of negligence and contributory negligence. In Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685, after criticizing the instruction there given on comparative negligence, this court said: "It may well be said in passing that the opinion of this court in Morrison v. Scotts Bluff County, supra, affords trial courts a safe guide (italics ours) for instructing on the rule of comparative negligence." In Pratt v. Western Bridge & Construction Co., 116 Neb. 553, 218 N.W. 397, this court said: "Since the case of Morrison v. Scotts Bluff County, 104 Neb. 254, 177 N.W. 158, decided by this court in 1920, there is scarcely any excuse for attempting to define the rule pertaining to comparative negligence otherwise than is therein stated." Very recently, in the case of Brooks v. Thayer County, 126 Neb. 610, 254 N.W. 413, this court said: An examination of the transcript in Brooks v. Thayer County, supra, discloses that instruction No. 18 used the identical language of the instruction in this case.
In the interests of grammatical exactitude, trial courts should correct what has become a stock instruction by virtue of this court's decision in Morrison v. Scotts Bluff County, supra. But where this court established a rule and it has been followed for more than thirteen years by trial courts of this state, it ought not to be changed except for reasons of grave importance. It has been held to be a good reason for refusing to change a rule established by a decision of court that it has been adhered to for many years. Purvis v. Shuman, 273 Ill. 286, 112 N.E. 679. In 15 C. J. 944, it is stated: "The doctrine of stare decisis applies with full force to decisions construing statutes, especially where they have been long acquiesced in." See Bradley v. Village of Union, 164 A.D. 735, 150 N.Y.S. 112; Miller v. Hart, 161 Wis. 611, 155 N.W. 115. Our court has followed this rule in Mosher v. Huwaldt, 86 Neb. 686, 126 N.W. 143, where it was held: "This court is not ordinarily bound by the construction put upon statutes by former opinions, if such construction is dictum only, being unnecessary to the determination of the case then before the court, but when such construction involves a question of practice only, and has been for more than 19 years followed by the trial courts, and indirectly several times approved by this court, it will be followed until changed by the lawmakers." An instruction, in the language of an opinion of this court construing a statute, approved indirectly and directly in numerous cases for a period of thirteen years, will not be held reversible error unless prejudicial.
Section 20-853, Comp. St. 1929, provides: "The court in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." This section of the statute was discussed in Maxson v. J. I. Case Threshing Machine Co., 81 Neb. 546, 116 N.W. 281, as follows: "This court will disregard any error or defect in instructions given or error in the failure or refusal to give instructions requested, where the action of the trial court did not affect the substantial rights of the litigants." The application of this positive legislative mandate compels us to ignore the irregular language of this instruction.
The instruction taken as a whole was clear to the jury and did not affect the substantial rights of the appellant. The entire instruction is set out to clarify the argument herein "The jury are instructed that if, on the trial of an action brought to recover damages for injuries to a person and his property caused by the negligence of another, the plaintiff is found to be guilty of negligence directly contributing to the injuries complained of, he cannot recover, even though the defendant was negligent, unless the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison therewith; and if, in comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which, under the circumstances, amounts to slight negligence, or if the negligence of the defendant falls in any degree short of gross negligence, under the circumstances, the contributory negligence of the plaintiff, however slight, will defeat a recovery, and even when the plaintiff has established...
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