Pongruber v. Patrick, 33401

• Decision Date: 18 December 1953
• Docket Number: No. 33401,33401
• Citation: 157 Neb. 799,61 N.W.2d 578
• Parties: PONGRUBER v. PATRICK et al.
• Court: Nebraska Supreme Court

Page 578

61 N.W.2d 578

157 Neb. 799

PONGRUBER v. PATRICK et al.

No. 33401.

Supreme Court of Nebraska.

Dec. 18, 1953.

Syllabus by the Court.

1. The purpose of a new trial is to enable the court to correct errors that have occurred in the conduct of the trial.

2. The alleged errors that may be considered in the district court are those which appear in the record of the proceedings which resulted in the verdict and judgment about which complaint is made and which are called to the attention of the trial court by the motion or appropriate pleadings.

3. The power of judicial discretion authorizes and requires the court to determine the question as to whether or not a legal reason exists for the granting of a new trial. If a legal reason exists and the complaining party makes his application in writing within the time fixed by statute, the court has no discretion in the matter and the motion must be sustained.

4. If the trial court gave no reasons for its decision, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.

5. Those errors will then be considered and determined here so far as necessary to the appeal, subject, of course, to the right to notice and consider plain errors not assigned.

6. The question whether negative evidence is sufficient to take the case to the jury is to be decided according to all the circumstances of the case. No absolute rule can be laid down in regard thereto, and different results will necessarily be reached, as the facts of each case differ.

7. It is the duty of the trial court, without request, to submit to and properly instruct the jury upon all the material issues presented by the pleadings and the evidence. This rule applies to the affirmative defense of contributory negligence.

8. There is no presumption or inference as to the negligence of a driver of an automobile arising from the mere fact that it collided with another vehicle.

9. A driver of an automobile should have his car under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof will exercise due care.

10. Reasonable control by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence in streets or intersections- , and with pedestrians in the exercise of due care.

Kennedy, Holland, DeLacy & Svoboda, Donald P. Lay, Omaha, for appellant.

Wear & Boland, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law brought by the plaintiff, Frank Pongruber, against John Patrick and Lawrence P. Patrick, defendants, in the district court for Douglas County. The defendant John Patrick, father of Lawrence P. Patrick, was dismissed from this action as a party defendant. The plaintiff seeks to recover damages resulting from an intersection accident by the collision of an automobile driven by him and an automobile driven by the defendant Lawrence P. Patrick. The case was tried before a jury, resulting in a verdict in favor of the defendant on the plaintiff's petition, and for the plaintiff on the defendant's counterclaim, with no damages to either party. The plaintiff moved for a new trial which was sustained. From the order granting the new trial, the defendant has appealed to this court.

The appellant assigns as error that the trial court was in error in granting a new trial, for the reason that the record in this case discloses no legal reason why a new trial should be granted, and the granting of a new trial constituted an abuse of discretion on the part of the trial judge.

The appellee filed his motion for new trial within the time provided, specifically set forth the grounds therefor in accordance with section 25-1142, R.R.S.1943, and specifically challenged each and every instruction given by the trial court.

The appellant cites Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772, 777, and quotes therefrom the following language: 'A new trial is to be granted for a legal cause and where it appears that a legal right has been invaded or denied. A new trial is not to be granted for arbitrary, vague, or fanciful reasons. * * * Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.' See, also, Scherz v. Platte Valley Public Power & Irr. Dist., 151 Neb. 415, 37 N.W.2d 721; In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526; Keiserman v. Lydon, 153 Neb. 279, 44 N.W.2d 513.

In the instant case the trial court gave no reasons for its decision. In this connection, the appellant cites from Greenberg v. Fireman's Fund Ins. Co., supra, as follows: 'If, as in the instant case, the trial court gave no reasons for its decision, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. Under these circumstances the appellant is not required to establish a negative. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.

'By that process the questions to be determined here are presented in a practical manner. Those errors will then be considered and determined here so far as necessary to the appeal, subject, of course, to our right to notice and consider plain errors not assigned. Such a procedure fully protects the rights of the parties.' See, also, Keiserman v. Lydon, supra; In re Estate of Fehrenkamp, 154 Neb. 488, 48 N.W.2d 421.

The appellee makes reference to section 25-1142, R.R.S.1943, which provides: 'A 'new trial' is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party; (1) irregularity in the proceedings of the court, jury, referee or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial; * * * (8) error of law occurring at the trial and excepted to by the party making the application.'

The district court has the power and is required to consider and determine motions for a new trial by the exercise of its judicial discretion. As used in this connection judicial discretion means the application of statutes and legal principles to all of the facts of a case. If a legal reason exists and the complaining party makes his application in writing within the time fixed by statute, the court has no discretion in the matter and the motion must be sustained. See Sautter v. Poss, 155 Neb. 62, 50 N.W.2d 547; Greenberg v. Fireman's Fund Ins. Co., supra.

The record discloses that at the time of the accident the appellee was engaged as a boiler gas maker for the Metropolitan Utilities District in Omaha, and had been so employed for 23 years. He was 64 years old at the time of the accident, and owned a 1931 Victoria type model A Ford automobile, in good mechanical condition. The Metropolitan Utilities District plant is located at Twentieth and Center Streets in the city of Omaha. The appellee worked the midnight shift from 11 p. m. to 7 a. m. He did not always wait until 7 a. m., but would leave the plant when his relief arrived.

The appellant, Lawence P. Patrick, was 21 years of age at the time of the accident and resided in Carson, Iowa, but was working in the city of Omaha for the Wilson Packing Company. He lived at 3510 Dodge Street where two of his friends from Carson, Iowa, also lived. They were also employed in packing plants. The appellant was the owner of a 1947 eight cylinder Oldsmobile which was in good mechanical condition and equipped with four-wheel hydraulic brakes.

The accident occurred at the intersection of Thirty-second Avenue and Center Street in Omaha at about 6:30 a. m., January 15, 1951. It was dark, the temperature was 35 degrees Fahrenheit, and the pavement was dry. The street lights were still on, and the lights of both the appellant's and appellee's automobiles were on. The topography of the intersection is briefly as follows: Thirty-second Avenue is 43 feet wide from curb to curb and slopes gently downward in a north-south direction so that in view is not obstructed for a driver coming from either direction toward Center Street which is 40 feet wide and almost level and comes from the west into Thirty-second Avenue, but not through Thirty-second Avenue. This intersection is commonly known as a 'T' intersection. There were no slow signs near the intersection, but there were signs indicating to traffic approaching Center Street from the north that the speed limit was 25 miles an hour at the time of the accident.

On the morning in question, the appellee left the gas plant at 6:20 or 6:22 a. m. He testified as to the course he took to arrive on Thirty-second Avenue, then to proceed north to Center Street. He was driving alone. The window on the left side of his car was open when he approached the...