Penhansky v. Drake Realty Const. Co., No. 22116.

• Court: Supreme Court of Nebraska
• Writing for the Court: LETTON
• Citation: 190 N.W. 265,109 Neb. 120
• Parties: PENHANSKY v. DRAKE REALTY CONST. CO.
• Decision Date: 20 October 1922
• Docket Number: No. 22116.

109 Neb. 120
190 N.W. 265

PENHANSKY
v.
DRAKE REALTY CONST. CO.

No. 22116.

Supreme Court of Nebraska.

Oct. 20, 1922.

[190 N.W. 265]

Syllabus by the Court.

Where one has been misled, or entrapped, into calling a witness by reason of such witness, previous to the trial, having made statements to the party, or his counsel, favorable to the party's contention, and at variance with the testimony given at the trial, and the party believed and relied upon such statements in calling the witness, and is surprised by the testimony on a material point, he may, in the discretion of the court, be permitted to show the contradictory statements made before the trial.

A statement of the issues in an instruction, which is not precisely correct, may not always be prejudicial and require a reversal of the judgment.

A cautionary and informative instruction with respect to expert witnesses and a general instruction that the jury are sole judges of the credibility of witnesses and may consider their relationship to the parties, their bias, or prejudice, if any has been shown, etc., are not inconsistent with each other.

The instruction set forth in the opinion held not to disparage the testimony of expert witnesses.

It is not improper to ascertain at the beginning of the trial and while the jury are being impaneled whether an insurance company is interested in the defense of an action for personal injuries, and whether any agent or officer of such corporation is upon the panel, so that the right of challenge may be understandingly exercised.

The rule as to contradiction of one's own witness announced in Blackwell v. Wright, 27 Neb. 269, 43 N. W. 116, 20 Am. St. Rep. 662,Masourides v. State, 86 Neb. 105, 125 N. W. 132, and Merkouras v. Chicago, B. & Q. Ry. Co., 101 Neb. 717, 723, 164 N. W. 719, is set aside.

Additional Syllabus by Editorial Staff.

In an action for personal injuries to a woman struck by a heavy motor truck, resulting

[190 N.W. 266]

in severe nervous shock, affecting her vision, developing into traumatic neurasthenia, where medical testimony recommended that she have hospital and medical treatment, estimating the cost at from $50 to $100 per week, a judgment of $5,000 held not excessive.

Appeal from District Court, Douglas County; L. B. Day, Judge.

Action by Gertrude Penhansky against the Drake Realty Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelso A. Morgan, of Omaha, and Livingston & Whitmore, of Bloomington, for appellant.

McKenzie, Cox, Burton, & Harris, of Omaha, for appellee.

Heard before MORRISSEY, C. J., LETTON, DAY, and ALDRICH, JJ., and REDICK and SHEPHERD, District Judges.

LETTON, J.

As plaintiff, accompanied by another woman, was endeavoring to cross Twenty-Fourth avenue near the intersection of Harney street in Omaha, a heavy motor truck belonging to defendant, and driven by one of its employees, came rapidly eastward on Harney street and turned south into Twenty-Fourth avenue. According to the testimony on behalf of plaintiff, they were about to cross the street to the Wise Memorial Hospital, which stood almost directly to the westward on the opposite corner; they stepped to the pavement and proceeded about four or five feet, when, becoming alarmed at the rapid approach of the truck, the two women turned, attempted to reach the sidewalk again, and were struck by the truck, at or about the curb line, and both were knocked down and injured. Three wheels of the truck mounted the curb before it stopped, and the left rear fender struck and knocked part of the bark off a tree which stood in the parking space between the sidewalk and the curb, about 36 feet to the south of the intersection.

The testimony on behalf of defendant is practically to the same effect, except that the witnesses say that the two women had nearly reached the center of the street going west, and that the driver of the truck was endeavoring to pass behind them, when they ran back to the east curb, fell, and were struck. This conflict in the evidence really furnishes the only material issue of fact in the case, and having been resolved by the jury, upon conflicting evidence, in favor of the contention of plaintiff, we must accept her version of the facts.

A number of assignments of error are made, some of them very general in their nature. Those which we deem necessary to the proper disposition of the case may be summarized as follows: That the verdict is excessive; that the court erred in permitting a witness to testify that the driver of the truck, who had been called as a witness for plaintiff, had made contradictory statements to those to which he testified at the trial; error in instructions; and error in this, that plaintiff's attorney during the trial, in the presence of the jury, stated that the defendant's liability was carried by an insurance company, and questioned defendant's attorney as to whether such was not the fact, much to the prejudice of the defendant.

[1] The first proposition of law relied upon by defendant is that a party may not contradict the testimony of his own witness by showing that the witness has, at another time and place, made statements contrary to the testimony given. Plaintiff was surprised and misled by the testimony of the driver of the truck who was called by him as to a very material fact. He was permitted to show by another witness that the driver had made directly contradictory statements to plaintiff's counsel, as to this, shortly before the trial. If we adhere to our former decisions on this point this would constitute error, though considering all the evidence in the case, we think it would not have been prejudicial. But we are now...