Pospichal v. Wiley

• Citation: 163 Neb. 236,79 N.W.2d 275
• Decision Date: 16 November 1956
• Docket Number: No. 33962,33962
• Parties: August J. POSPICHAL, Appellant, v. Robert V. WILEY and American Salt Company, Appellees.
• Court: Supreme Court of Nebraska

Page 275

79 N.W.2d 275

163 Neb. 236

August J. POSPICHAL, Appellant, v. Robert V. WILEY and American Salt Company, Appellees.

No. 33962.

Supreme Court of Nebraska.

Nov. 16, 1956.

Syllabus by the Court.

1. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. Where different minds may reasonably draw different conclusions from the evidence, or there is a conflict in the evidence as to whether or not negligence or contributory negligence has been established, the question is for the jury.

3. Where snowdrifts or other conditions have left only a narrow lane open for travel, and one motorist has already entered the lane, it is the duty of another driver approaching from the opposite direction to slow down and yield the right-of-way, and if he does not do so because of failure to keep a proper lookout or because his speed makes it impossible, a finding of actionable negligence on the part of such driver is permissible.

4. The refusal of the trial court to permit the jury to view the premises involved in the litigation is not reversible error in the absence of an abuse of discretion.

5. A person is liable for the negligent operation of an automobile by his servant or agent only where such servant or agent, at the time of the accident, was engaged in his employer's or principal's business with his knowledge and direction.

6. Where a verdict is returned against a plaintiff and in favor of several defendants, on different, distinct, and separate defenses pleaded separately by them, a single joint motion for a new trial against them all is insufficient, and it should be overruled if the verdict is good as to any one of the defendants.

Leo F. Clinch, Burwell, Davis & Vogeltanz, Ord, for appellant.

Frederick M. Deutsch, Norfolk, William F. Manasil, Burwell, for appellees.

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

WENKE, Justice.

This is an appeal from the district court for Garfield County. August J. Pospichal brought this action against Robert V. Wiley and his employer, the American Salt Corporation, to recover for injuries sustained by him and damages to his truck, a 1948 1-ton Chevrolet pick-up, claiming Wiley's negligence in operating his car, a 1952 Packard sedan, caused the accident which resulted in the injuries and damages of which complaint is made. Wiley filed a cross-petition whereby he sought to recover from Pospichal for injuries he personally suffered and for damages to his car, both of which resulted from the accident, claiming it was the negligence of Pospichal in driving his truck that caused the accident and his resulting injuries and damages. Upon trial a jury found neither Pospichal nor Wiley had established a cause of action against the other and rendered a verdict accordingly. Pospichal filed a motion for new trial against both defendants and, from the overruling thereof, has taken this appeal. For convenience we shall, when referring to the appellees separately, refer to them as Wiley and the company.

The accident involving appellant and Wiley happened about 4:30 p. m. on Friday December 4, 1953, on State Highway No. 11 at a point about 16 miles north of Burwell, Nebraska. There had been a snowstorm or blizzard on Thursday, December 3, 1953, which, to some extent, had drifted the snow and, at the point of the accident which was just south of the crest of a hill, a rather long and deep snowbank had formed across the highway. A lane for travel had been cut in this drift and the accident happened in this lane when the parties' truck and car met almost head-on, the left front of the car and the left front of the truck coming together. Both appellant the Wiley were injured and the truck and car damaged.

Appellant contends the verdict of the jury was against the evidence. In support of this contention he cites the following principles:

'A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside, and a new trial awarded.' Garfield v. Hodges & Baldwin, 90 Neb. 122, 132 N.W. 923. See, also, Hoffman v. McKeen Motor Car Co., 95 Neb. 238, 145 N.W. 257.

'When the judgment is clearly against the weight of the evidence, it is the duty of the court to set it aside.' Nebraska Mutual Ins. Co. v. Borden, 132 Neb. 656, 272 N.W. 767, 768. See, also, Bentley v. Hoagland, 94 Neb. 442, 143 N.W. 465.

But, in considering these principles we must review the record, since a verdict was rendered for appellees, in the following manner: 'In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757, 761. See, also, Simcho v. Omaha & C. B. St. Ry. Co., 150 Neb. 634, 35 N.W.2d 501; Fuss v. Williamson, 160 Neb. 141, 69 N.W.2d 539.

In reviewing the evidence in the foregoing manner there is a jury question when the evidence with relation to negligence is conflicting or such that minds may reasonably reach different conclusions therefrom with regard to its existence. See, Hickman v. Parks Construction Co., 162 Neb. 461, 76 N.W.2d 403; Scottsbluff Nat. Bank v. First State Bank, 162 Neb. 475, 76 N.W.2d 445. As stated in Price v. King, 161 Neb. 123, 72 N.W.2d 603, 604: 'Where different minds may reasonably draw different conclusions from the evidence, or there is a conflict in the evidence as to whether or not negligence or contributory negligence has been established, the question is for the jury.'

From the evidence the jury could have found that the snowdrift, which had formed across highway No. 11, started a short distance south of the crest of the hill and extended south on the highway for a distance of some 225 to 300 feet; that it extended into a curve in the road where the road is partially in a cut along the side of a hill, which hill is to the west, there being a ravine and lower ground to the east; that a one-way lane, about 9 feet in width, had been cut through this drift by means of a snowplow; that the snow along the east side of this cut or lane, which had a slight curve in it where it followed the curve in the road, was between 2 1/2 and 3 feet high while that to the west side was between 7 and 8 feet high; that Wiley, who was coming from the north, entered the lane first, doing so just after passing over the crest of the hill; that he proceeded into it for some distance at about 35 miles an hour before he noticed appellant's truck about 100 feet away; that appellant was, at the time Wiley saw his truck, just about to enter the one-way lane; that appellant was, at that time, driving about 35 miles an hour; that appellant did not see Wiley's car until it was about 60 feet from him; that appellant did not attempt to stop his truck, as is indicated by the fact there were no skid marks south of the point where the car and truck came together; that appellant was driving his truck about 30 miles an hour when the collision occurred; that Wiley attempted to stop his car by applying the brakes, as is evidenced by about 44 feet of skid marks north from the point of impact, but was unable to do so because the highway was icy from the snow packed thereon; that the accident, or point of impact, occurred about 45 feet from the south entrance to the lane, which lane was from 225 to 300 feet in length; and that upon impact both cars stopped immediately, the truck facing slightly northwest in the direction of the highway and the car slightly southeast, its back end having skidded sideways toward the west. We realize appellant testified otherwise but the members of the jury did not have to believe him and, from a careful study of the record, we can understand why they did not.

As stated in 1 Blashfield, Cyclopedia of Automobile Law and Practice (Part 2, Perm. ed.), s. 749, p. 686: '* * * where snowdrifts or other conditions have left only a narrow lane open for travel, and one motorist has already entered the lane, it is the duty of another driver approaching from the opposite direction to slow down and yield the right of way, and if he does not do so because of failure to keep a proper lookout or because his speed makes it impossible, a finding of actionable negligence on the part of such driver is permissible.' The same would be true as to contributory negligence. The evidence adduced presented a jury question as to both appellant and Wiley and the court was correct in submitting it accordingly.

Appellant contends the jury was misled by certain instructions given by the court. The first relates to the second paragraph of instruction No. 9. This...