Petracek v. Haas O. K. Rubber Welders, Inc.

• Decision Date: 21 February 1964
• Docket Number: No. 35561,35561
• Citation: 126 N.W.2d 466,176 Neb. 438
• Parties: Lumir PETRACEK, Appellee, v. HAAS O. K. RUBBER WELDERS, INC., a corporation, Appellant.
• Court: Nebraska Supreme Court

Page 466

126 N.W.2d 466

176 Neb. 438

Lumir PETRACEK, Appellee, v. HAAS O. K. RUBBER WELDERS, INC., a corporation, Appellant.

No. 35561.

Supreme Court of Nebraska.

Feb. 21, 1964.

Syllabus by the Court

1. The burden of establishing a cause of action by circumstantial evidence requires that such evidence, to be sufficient to sustain a verdict or require submission of a case to a jury, shall be of such character and the circumstances so related to each other that a conclusion fairly and reasonably arises that the cause of action has been proved.

2. The burden of a plaintiff relying on circumstantial evidence to sustain a cause of action for damages does not require him to exclude the possibility that damages flowed from some cause other than the one on which he relies.

3. A party claiming contributory negligence as a defense has the burden of proving it.

4. Ordinarily it is error to permit an expert witness to give his opinion on the ultimate fact to be determined by the jury.

5. It is not a valid objection to the evidence of an expert that the answer covers the whole ground the jury is to decide, if the case is one to be wholly resolved by such evidence.

Cline, Williams, Wright, Johnson, Old-father & Thompson, Richard R. Endacott, Lincoln, for appellant.

Chambers, Holland, Dudgeon & Hastings, Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

YEAGER, Justice.

This is an action for damages based upon alleged negligence filed in the district court for Lancaster County, Nebraska, by Lumir Petracek, plaintiff, against Theo O. Haas, doing business as OK Rubber Welders, and T. O. Haas Tire Company, defendants. After the action was instituted an amended petition was filed in which Theo O. Haas remained as a party defendant and Haas O. K. Rubber Welders, Inc., a corporation, was named as a party defendant. In this wise the case was presented to the district court and is presented to this court. The plaintiff is appellee here and Haas O. K. Rubber Welders, Inc., is appellant. The action as to the defendant Theo O. Haas was decided in his favor, hence he is not a party to the proceeding in this court.

The action was pleaded in three causes of action. The first cause of action was for damages on account of alleged personal injuries to plaintiff flowing from an accident occurring on August 4, 1961, which the plaintiff claims resulted from negligence attributable to the defendant.

The second cause of action is based on the alleged negligence contained in the first cause of action and it is for damage to an automobile belonging to the plaintiff. The third cause of action was dismissed and no appeal from the dismissal was taken. No further reference to it is required.

The case was tried to a jury and a verdict was returned in favor of the plaintiff on the first cause of action for $15,000 and on the second for $1,420. Judgment was duly rendered in favor of the plaintiff and against the defendant for the amount specified in the verdict.

At the conclusion of the evidence and prior to the submission of the case to the jury the defendant moved for dismissal of the action or in the alternative for a directed verdict. This motion was overruled.

After the verdict was returned the defendant moved for a judgment in its favor notwithstanding the verdict or in the alternative for a new trial, which motion was overruled. It is from the order overruling this motion and the judgment that the appeal herein was taken.

A brief recital of the pleaded facts relating to causation which are the basis of the action here is that the plaintiff on or about July 22, 1961, purchased from the defendant four new tubeless automobile tires which the defendant agreed to and by its employees did install upon the four wheels of a 1960 Ford Tudor Sedan; that thereafter the plaintiff on August 4, 1961, drove on U. S. Highway No. 77 with his family to a point in the State of Kansas about 4 miles south of Florence, Kansas; that at that time the automobile became unmanageable, pulled strongly to the right shoulder, then went into the ditch on the left-hand side and turned over three times; and that the plaintiff sustained severe, painful, and permanent injuries, all of which were proximately caused by the failure of the defendant to securely tighten the lug bolts on the left rear wheel of the automobile, as the result of which the lug bolts became loosened and worn and the wheel became dislodged from its normal position and ultimately became detached from the automobile.

It is pointed out here that the acts charged against the defendant were performed by employees, but the court instructed the jury that, if they constituted negligence, they were chargeable against the defendant, and to this instruction there is no objection.

By the petition in juries to the plaintiff are pleaded as are also damages to his automobile. These allegations do not require review herein since the defendant by answer admits that there was an accident, injuries to the plaintiff, and damage to his automobile, and does not on this appeal raise any question as to the amount fixed by the jury as damages which plaintiff sustained. By the appeal it is contended only that there was no liability on the part of the defendant.

The defendant filed an answer in which it admitted the sale and installation of the tires as pleaded by the plaintiff but denied any improper and negligent installation. Further answering the defendant in the following words said: 'The defendants allege that said accident was proximately caused or contributed to by the negligence and carelessness of the plaintiff.' The answer also contained the following: 'Said accident occurred in the State of Kansas and Kansas does not have a comparative negligence statute similar to the comparative negligence statute of the State of Nebraska.' These allegations of the answer will be adverted to herein.

A review of the evidence on which the determination here must be made discloses that the plaintiff was the owner of a 1960 Ford automobile which he had purchased at about Thanksgiving Day of 1959; that he alone operated it and had operated it about 42,000 miles up to the time the new tires were purchased in July 1961; that after the change of tires until he started on the trip referred to he had driven it 50 to 60 miles; that thereafter on the trip and up to the time of the accident he operated it about another 200 miles; and that after he had traveled on the trip about 200 miles the automobile became unmanageable and the right wheels left the traveled portion of the right side of the road and moved forward on that side for a distance of about 249 feet, then came back and went forward about 129 feet when it left the road and turned over in the ditch about 500 feet from the point where it became unmanageable.

Returning to the incident of the change of tires and the connected subsequent event, the evidence descloses that the plaintiff, at the place of business of the defendant, arranged for and purchased four new tires; that the old tires were removed and were replaced by the new tires; that the plaintiff did not participate in making the change of tires; that after the change was made he was informed his automobile was ready; and that he observed that the left rear hubcap had not been replaced whereupon he started to replace it, but an employee of the defendant intervened and replaced the hubcap. Immediately after this the plaintiff drove the automobile away and used it as has already been stated up to and including the time of the accident.

After the accident...