Perrine v. Hokser

• Decision Date: 19 February 1954
• Docket Number: No. 33434,33434
• Citation: 158 Neb. 190,62 N.W.2d 677
• Parties: PERRINE v. HOKSER.
• Court: Nebraska Supreme Court

Page 677

62 N.W.2d 677

158 Neb. 190

PERRINE v. HOKSER.

No. 33434.

Supreme Court of Nebraska.

Feb. 19, 1954.

Syllabus by the Court.

1. It is error for the trial court to submit to the jury an issue not pleaded in the case.

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

3. It is a matter for the jury to decide, in the absence of an authorized requirement otherwise, whether under the circumstances before it the operator of a motor vehicle should have given a signal.

4. It is not error to refuse a requested instruction if the substance of it is included in the instructions given.

5. Courts do not usually take judicial notice of a municipal ordinance, and a party to have the benefit of it as evidence must generally plead and prove the existence of the ordinance.

6. Errors assigned by a litigant but not discussed by him will be considered waived and will usually not be examined or decided by this court.

7. If the jury finds the defendant in a personal injury action is not chargeable with negligence an error relating to the subject of damages is necessarily harmless.

Perry & Perry, W. W. Nuernberger, Lincoln, for appellant.

Stewart & Stewart, Lincoln, William H. Meier, Minden, for appellee.

Heard before CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellant sought to recover damages from appellee on the basis that injury to her person and property by the collision of an automobile operated by appellant and a motor vehicle driven by appellee was caused by his negligence. A verdict for appellee was the result of the trial in the district court. A judgment was rendered in harmony with the verdict.

Appellant alleged that on or about October 15, 1951 at about 4 o'clock in the afternoon she was operating her automobile in a careful manner in an easterly direction on B Street between Tenth and Eleventh Streets in the city of Lincoln; that appellee was driving an automobile towards the east on B Street near the location of the car of appellant in a careless and negligent manner; that appellee attempted to pass the car of appellant from the rear and in doing so failed to allow sufficient clearance on the right side of his vehicle for the car of appellant; that appellee turned his vehicle to the right in the street before there was clearance of the car of appellant as it was traveling to the east; that appellee ran his vehicle into, against, and upon the car of appellant; that appellee failed to have his vehicle under control; that he failed to yield the right-of-way to appellant; that appellee failed to keep a proper lookout for the car of appellant; that the vehicles collided as a proximate result of the said careless and negligent acts and omissions of appellee; and that multiple and serious injuries were caused appellant and these resulted in permanent disability. She pleaded and asked recovery of damages in a large amount.

Appellee by his answer admitted that at the time stated his automobile and one operated by appellant came in contact with each other at the place described by her; denied all other matters alleged by her; alleged that appellee was at the time the automobiles came in contact with each other operating his automobile in a careful and prudent manner; and that the contact of the cars with each other and any damage resulting to appellant were proximately caused or contributed to by her negligence which was more than slight compared to any negligence of appellee.

Appellant denied the contents of the answer of appellee and alleged that the negligence of appellee was gross in character.

Appellant claims prejudice because the trial court did not include in the charge to the jury instructions No. 2 and No. 6 tendered by her. The first of these proposed that the jury be advised that if it found that appellee failed to give an audible signal of his intention to pass the car of appellant that this omission would constitute a violation of the statutes of Nebraska, would not necessarily constitute negligence, but should be considered with the other evidence in the case in determining whether or not the appellee was guilty of negligence which caused or contributed to the accident. The other proposal was in substance that the law of the state requires a motor vehicle to have a horn or other audible signal device capable of being heard for at least 200 feet; that it is the duty of a driver of an overtaking vehicle to give an audible signal of his intention to pass another motor vehicle; and that if the jury found that appellee passed the automobile of appellant without giving an audible signal of his intention to do so his failure in this regard should be considered by the jury as evidence of negligence.

The essence of the complaint made because of the refusal of the proposed instructions alluded to above was that the court was wrong in not instructing the jury that the failure of appellee to sound the horn on his automobile at the time he attempted to pass the car of appellant was evidence of negligence competent for the jury to consider with all the other evidence in deciding the issue of negligence of appellant. The refusal of the court was justified in this respect by the absence from the petition of appellant of a charge that appellee failed to sound his horn and that the failure to give a signal of his intention to pass the car of appellant caused or contributed to the collision of the vehicles. Any instruction on the failure of appellee to give a signal of his intention to pass the car of appellant would have given her the benefit of a specification of negligence not claimed by her as a part of her cause of action. It is error for the trial court to submit to the jury an issue not raised by the pleadings. Citizens' Nat. Bank v. Sporn, 115 Neb. 875, 215 N.W. 120; Reid v. Brechet, 117 Neb. 411, 220 N.W. 590, 221 N.W. 17. The requirement of the law is that instructions given by the trial court be confined to the issues pleaded and supported by evidence. Becks v. Schuster, 154 Neb. 360, 48 N.W.2d 67.

The first tendered instruction noticed above is not a correct statement of any rule of law. It asserts that failure of appellee to give an audible signal was a violation of the statute. The statute quoted in the proposal does not require an operator of a motor vehicle to give such a signal before passing another car moving in the same direction. Section 39-7,109, R.R.S.1943. The obligation imposed by the statute is that the driver of an overtaken vehicle shall give way in favor of the overtaking vehicle on the giving of an audible signal. The assertion of the tendered instruction No. 6 that it is the duty of a driver of a motor vehicle to give an audible signal of his intention to pass another vehicle overtaken by the former is not true. The duty of the operator of a motor vehicle to signal depends upon the circumstances of the case. It is ordinarily a matter for the jury to decide whether or not under the circumstances before it the driver should have given a signal. Tews v. Bamrick, 148 Neb. 59, 26 N.W.2d 499; Adams...